All - In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide." While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain. The language has been in the proposed Mission Statement since our Frankfurt meeting last January. Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars. On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.). The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue. (Another approach, which I floated, was strongly criticized.) As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws. I look forward to a fruitful discussion in 12 hours! 2nd Draft Report Language Post-Dublin Language Greg Shatan Proposal 2 Nov 2015 Malcolm Hutty Proposal 6 Nov 2015 ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide. ICANN shall have no power to act strictly other than in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. In service of its Mission ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation. In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission. subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars 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>
Thanks for the summary Becky, at a first glance, I find Malcolm's proposal to be consistent with ICANN mission. One minor aspect I like to clarify though is whether one could say there is indeed some "content"(small letter c) that ICANN regulates. Considering that whois for instance is some form of service used by the unique identifiers, don't they qualify as content? Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 10 Nov 2015 01:09, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
All -
In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide."
While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain. The language has been in the proposed Mission Statement since our Frankfurt meeting last January. Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars. On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.).
The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue. (Another approach, which I floated, was strongly criticized.) As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws. I look forward to a fruitful discussion in 12 hours!
2nd Draft Report Language
Post-Dublin Language
Greg Shatan Proposal 2 Nov 2015
Malcolm Hutty Proposal 6 Nov 2015
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.
ICANN shall have no power to act strictly other than in accordance with, and only as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
In service of its Mission ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation.
In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide.
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars
*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>
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I'm flattered (I think) to have my name attached to a proposal. However, my thinking has evolved with regard to certain parts of the post-Dublin language, "my" proposal and Malcolm's proposal. I would suggest a version that is in many ways is an amalgamation of these 3. The first paragraph is most similar to Malcolm's proposal, while the second is most similar to the Post-Dublin proposal. The third paragraph is taken from the Second Draft Report and from the recommendations of WP1 after the second public comment analysis. A clean version is below, followed by a version of Becky's chart with an added column for this proposal (a PDF is also attached). For convenience, I've marked my latest version against Malcolm's rather than my prior version. As a general rule, I chose versions that had the clearest language and avoided extra phrases that did not seem to add meaning. Greg ICANN shall only act in accordance with its Mission. Without in any way limiting the foregoing, ICANN shall not regulate services (i.e. those offered by web servers, mail servers and the like) that use the Internet's unique identifiers or the content that those services carry or provide. The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements. Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition. 2nd Draft Report Language Post-Dublin Language Greg Shatan Proposal 2 Nov 2015 Malcolm Hutty Proposal 6 Nov 2015 Greg Shatan Proposal 9 Nov 2015 ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide. ICANN shall have no power to act strictlyother than in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. In service of its Mission ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation. In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission. subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars ICANN shall only act strictly[1] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn1> in accordance with its Mission. Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of regulate services (i.e. those offered by web servers, mail servers and the like)[2] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn2> that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate[3] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn3> or the content that those services carry or provide. The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements.[4] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn4> Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition.[5] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn5> ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission. ------------------------------ [1] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref1> I have not accepted Malcolm’s addition of “strictly,” since this will be construed to mandate the most restrictive and conservative interpretation possible and thus make the bylaw overly inflexible. [2] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref2> This is taken from an email from Malcolm Hutty, as a description of what is meant by “services” in this context. Due to the variety of meanings that “services” can have, it is necessary to avoid ambiguity. [3] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref3> Once the nature of the “services” is clarified, the nature of their “use” no longer needs to be clarified. [4] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref4> This is taken almost verbatim from the Second Draft Report, para. 158. Since it is a direct comment on the contents of the Bylaw, it should be reflected in the draft Bylaw. Once this is here, Malcolm’s last sentence is no longer needed. [5] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref5> This is a recommendation taken from the “Comment Summary PRINCIPLES” analysis prepared by WP1 after the second Public Comment period. On Mon, Nov 9, 2015 at 7:09 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
All -
In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide."
While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain. The language has been in the proposed Mission Statement since our Frankfurt meeting last January. Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars. On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.).
The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue. (Another approach, which I floated, was strongly criticized.) As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws. I look forward to a fruitful discussion in 12 hours!
2nd Draft Report Language
Post-Dublin Language
Greg Shatan Proposal 2 Nov 2015
Malcolm Hutty Proposal 6 Nov 2015
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.
ICANN shall have no power to act strictly other than in accordance with, and only as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
In service of its Mission ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation.
In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide.
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars
*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>
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I like both of Greg's formulations. It should be expressed in the form "ICANN shall have no power . . . . " On 11/10/2015 06:11 AM, Greg Shatan wrote:
I'm flattered (I think) to have my name attached to a proposal. However, my thinking has evolved with regard to certain parts of the post-Dublin language, "my" proposal and Malcolm's proposal. I would suggest a version that is in many ways is an amalgamation of these 3. The first paragraph is most similar to Malcolm's proposal, while the second is most similar to the Post-Dublin proposal. The third paragraph is taken from the Second Draft Report and from the recommendations of WP1 after the second public comment analysis. A clean version is below, followed by a version of Becky's chart with an added column for this proposal (a PDF is also attached). For convenience, I've marked my latest version against Malcolm's rather than my prior version. As a general rule, I chose versions that had the clearest language and avoided extra phrases that did not seem to add meaning.
Greg
ICANN shall only act in accordance with its Mission.
Without in any way limiting the foregoing, ICANN shall not regulate services (i.e. those offered by web servers, mail servers and the like) that use the Internet's unique identifiers or the content that those services carry or provide.
The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements. Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition.
2^nd Draft Report Language
Post-Dublin Language
Greg Shatan Proposal 2 Nov 2015
Malcolm Hutty Proposal 6 Nov 2015
Greg Shatan Proposal 9 Nov 2015
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.
ICANN shall have no power to act strictlyother thanin accordance with, and only as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
In service of its MissionICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation.
In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide.
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars
ICANN shall only act strictly[1] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn1> in accordance with its Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of regulate services(i.e. those offered by web servers, mail servers and the like)[2] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn2> that use the Internet's unique identifiersto enable or facilitate their reachability over the Internet, nor shall it regulate[3] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn3> or the content that those services carry or provide.
The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements.^^[4] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn4> Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition.^^[5] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn5>
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
------------------------------------------------------------------------
[1] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref1> I have not accepted Malcolm’s addition of “strictly,” since this will be construed to mandate the most restrictive and conservative interpretation possible and thus make the bylaw overly inflexible.
[2] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref2> This is taken from an email from Malcolm Hutty, as a description of what is meant by “services” in this context. Due to the variety of meanings that “services” can have, it is necessary to avoid ambiguity.
[3] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref3> Once the nature of the “services” is clarified, the nature of their “use” no longer needs to be clarified.
[4] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref4> This is taken almost verbatim from the Second Draft Report, para. 158. Since it is a direct comment on the contents of the Bylaw, it should be reflected in the draft Bylaw. Once this is here, Malcolm’s last sentence is no longer needed.
[5] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref5> This is a recommendation taken from the “Comment Summary PRINCIPLES” analysis prepared by WP1 after the second Public Comment period.
On Mon, Nov 9, 2015 at 7:09 PM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
All -
In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide."
While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain. The language has been in the proposed Mission Statement since our Frankfurt meeting last January. Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars. On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.).
The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue. (Another approach, which I floated, was strongly criticized.) As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws. I look forward to a fruitful discussion in 12 hours!
2^nd Draft Report Language____
Post-Dublin Language____
Greg Shatan Proposal 2 Nov 2015____
Malcolm Hutty Proposal 6 Nov 2015____
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. ____
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.____
ICANN shall have no power to act strictlyother thanin accordance with, and only as reasonably appropriate to achieve its Mission. ____
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ____
In service of its MissionICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.____
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. ____
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ____
ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation.____
In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.____
ICANN shall only act strictly in accordance withand as reasonably appropriate to achieveits Mission. ____
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide. ____
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.____
subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars____
* *
* *
* *
* *
* *
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:***+1.202.533.2932 <tel:%2B1.202.533.2932> *Mobile:***+1.202.352.6367 <tel:%2B1.202.352.6367> */**neustar.biz* <http://www.neustar.biz>____
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On Tue, Nov 10, 2015 at 7:11 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
[2] This is taken from an email from Malcolm Hutty, as a description of what is meant by “services” in this context. Due to the variety of meanings that “services” can have, it is necessary to avoid ambiguity.
adding "....and the like" already creates ambiguity. WHOIS(or to be more generic, any content related to a registrant) for instance does not run from Pluto as it can indeed be classified as a service, which IMO should have some form of regulation.
[3] Once the nature of the “services” is clarified, the nature of their “use” no longer needs to be clarified.
[4] This is taken almost verbatim from the Second Draft Report, para. 158. Since it is a direct comment on the contents of the Bylaw, it should be reflected in the draft Bylaw. Once this is here, Malcolm’s last sentence is no longer needed.
[5] This is a recommendation taken from the “Comment Summary PRINCIPLES” analysis prepared by WP1 after the second Public Comment period.
I don't think mission should be tied to documents that can change at any point in time. Its also good to use few technical/complicated words as much as possible....thats why I find that of Malcom quite on point and understandable. I am though in agreement with removing the word "strictly" as proposed by Greg. In other to ensure that ICANN mission supersedes any possible contract/agreement, I will also suggest the section below be updated as thus: "ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission. TO "ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in accordance to and in service of its Mission. On a lighter note, i expect that this is only looking at one of the open items of the mission statement. Regards
On Mon, Nov 9, 2015 at 7:09 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
All -
In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide."
While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain. The language has been in the proposed Mission Statement since our Frankfurt meeting last January. Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars. On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.).
The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue. (Another approach, which I floated, was strongly criticized.) As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws. I look forward to a fruitful discussion in 12 hours!
2nd Draft Report Language
Post-Dublin Language
Greg Shatan Proposal 2 Nov 2015
Malcolm Hutty Proposal 6 Nov 2015
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.
ICANN shall have no power to act strictly other than in accordance with, and only as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
In service of its Mission ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation.
In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide.
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars
*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>
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Greg, Thank you for this new proposal. I would make some comments: 1. I think your new wording "(i.e. those offered by web servers, mail servers and the like)" is less clear or precise than either the previous formulation ("services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet") or the simpler one that preceded it ("services that use the Internet's unique identifiers"). What, for example, does "and the like" mean? What are its bounds? But since we're not drafting final bylaws language, perhaps your wording could be included in a footnote, as a drafting note to the lawyers? Would that satisfy you? 2. Your new paragraph referencing the 2013 RAA is problematic. The 2013 RAA may evolve or be replaced; Fundamental Bylaws are expected to be more lasting. And the RAA is contract between its signatory parties, not a community policy; its provisions could be waived or not enforced (as you yourself complain indeed happens). 3. Moreover, this language is absolutely intended to restrain what Consensus Policy may contain, and I'm afraid your language suggests otherwise. This wording could even be taken as immunising Consensus Policy from challenge. That is not the intent; the Mission is not only a standard for holding the Board to account, but also the community. A purported Consensus Policy that infringes this prohibition should be subject to challenge, and alleged infringement of the 2013 RAA and of this provision should both be grounds for mounting such a challenge; the nexus between the two will certainly help the IRP in deciding each. 4. In any case, I don't see why you want would to replace the words "in service of its Mission" with anything as cumbersome as you propose. On 10/11/2015 06:11, Greg Shatan wrote:
I'm flattered (I think) to have my name attached to a proposal. However, my thinking has evolved with regard to certain parts of the post-Dublin language, "my" proposal and Malcolm's proposal. I would suggest a version that is in many ways is an amalgamation of these 3. The first paragraph is most similar to Malcolm's proposal, while the second is most similar to the Post-Dublin proposal. The third paragraph is taken from the Second Draft Report and from the recommendations of WP1 after the second public comment analysis. A clean version is below, followed by a version of Becky's chart with an added column for this proposal (a PDF is also attached). For convenience, I've marked my latest version against Malcolm's rather than my prior version. As a general rule, I chose versions that had the clearest language and avoided extra phrases that did not seem to add meaning.
Greg
ICANN shall only act in accordance with its Mission.
Without in any way limiting the foregoing, ICANN shall not regulate services (i.e. those offered by web servers, mail servers and the like) that use the Internet's unique identifiers or the content that those services carry or provide.
The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements. Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition.
2^nd Draft Report Language
Post-Dublin Language
Greg Shatan Proposal 2 Nov 2015
Malcolm Hutty Proposal 6 Nov 2015
Greg Shatan Proposal 9 Nov 2015
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.
ICANN shall have no power to act strictlyother than in accordance with, and only as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
In service of its Mission ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation.
In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall only act strictly in accordance with and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide.
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars
ICANN shall only act strictly[1] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn1> in accordance with its Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of regulate services(i.e. those offered by web servers, mail servers and the like)[2] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn2> that use the Internet's unique identifiersto enable or facilitate their reachability over the Internet, nor shall it regulate[3] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn3> or the content that those services carry or provide.
The prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide does not act as a restraint on ICANN’s authority to negotiate, enter into and enforce agreements.^^[4] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn4> Consensus Policy, as defined in “Consensus Policies and Temporary Policies Specification” in the 2013 Registrar Accreditation Agreement, is outside of such prohibition.^^[5] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftn5>
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
------------------------------------------------------------------------
[1] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref1> I have not accepted Malcolm’s addition of “strictly,” since this will be construed to mandate the most restrictive and conservative interpretation possible and thus make the bylaw overly inflexible.
[2] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref2> This is taken from an email from Malcolm Hutty, as a description of what is meant by “services” in this context. Due to the variety of meanings that “services” can have, it is necessary to avoid ambiguity.
[3] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref3> Once the nature of the “services” is clarified, the nature of their “use” no longer needs to be clarified.
[4] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref4> This is taken almost verbatim from the Second Draft Report, para. 158. Since it is a direct comment on the contents of the Bylaw, it should be reflected in the draft Bylaw. Once this is here, Malcolm’s last sentence is no longer needed.
[5] <file:///C:/Users/Greg/Documents/Comparison%20of%20Mission%20and%20Core%20Values%20Language.docx#_ftnref5> This is a recommendation taken from the “Comment Summary PRINCIPLES” analysis prepared by WP1 after the second Public Comment period.
On Mon, Nov 9, 2015 at 7:09 PM, Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
All -
In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide."
While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain. The language has been in the proposed Mission Statement since our Frankfurt meeting last January. Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars. On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.).
The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue. (Another approach, which I floated, was strongly criticized.) As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws. I look forward to a fruitful discussion in 12 hours!
2^nd Draft Report Language____
Post-Dublin Language____
Greg Shatan Proposal 2 Nov 2015____
Malcolm Hutty Proposal 6 Nov 2015____
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. ____
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.____
ICANN shall have no power to act strictlyother thanin accordance with, and only as reasonably appropriate to achieve its Mission. ____
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ____
In service of its MissionICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.____
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. ____
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ____
ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation. ____
In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.____
ICANN shall only act strictly in accordance withand as reasonably appropriate to achieveits Mission. ____
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide. ____
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.____
subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars____
* *
* *
* *
* *
* *
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:***+1.202.533.2932 <tel:%2B1.202.533.2932> *Mobile:***+1.202.352.6367 <tel:%2B1.202.352.6367> */**neustar.biz* <http://www.neustar.biz>____
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-- 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
Hi, As usual, offering these observations in a friendly way, while recognizing I've not been through all the deliberations (so I'm not trying to impose a view or rehash previous discussion). On Tue, Nov 10, 2015 at 12:09:21AM +0000, Burr, Becky wrote:
While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain.
I think an important change since some of the earlier meetings is that people appear to have converged on mission text itself that is more limiting than what (at least in my opinion) was there before. I wonder whether, in light of that more limited description, the specific limitations are still necessary. I can see an argument in either direction. In favour, there is the point that ICANN could still undertake regulation of content or services by using its leverage over delegations. Since we all agree that ICANN should not be a quasi-regulator of content and services on the Internet, it would be good to add the restriction. I nevertheless feel the argument against the specific limitations may be stronger. The more limited mission statement restricts (or is supposed to) ICANN to the root zone of the DNS rather than all name-type unique identifiers. ICANN still needs to ensure the "stable and secure operation", also. Those two points ought to combine to restrict ICANN's freedom of movement on any particular content or service, because the only option ICANN would have would be to remove the delegation from the root zone. Since that would have negative consequences for many names other than the targetted one, ICANN would be failing in its mission of stable and secure operation; therefore, ICANN would not be free to take this action. So, the specific limitations do not add anything to the mission or values and can be omitted. Perhaps more practically, if we add to the mission all the things we want ICANN not to do (but where we think, perhaps on historical grounds, there may be a risk), the mission will get a very long list of specific exclusions. The change could be justified with respect to previous public comment because of the revised, simplified, and overall narrower mission statement language. I think it could be yet another case where simpler and more accurate language benefits everyone by being easier to understand and still comprehensive. I hope this is helpful; and again, I'm not trying to butt in, so please feel free to tell me to take a long walk into the changing tide! Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
On 10/11/2015 08:58, Andrew Sullivan wrote:
I can see an argument in either direction. In favour, there is the point that ICANN could still undertake regulation of content or services by using its leverage over delegations. Since we all agree that ICANN should not be a quasi-regulator of content and services on the Internet, it would be good to add the restriction.
Great, so we're in agreement about the underlying aim here.
I nevertheless feel the argument against the specific limitations may be stronger. The more limited mission statement restricts (or is supposed to) ICANN to the root zone of the DNS rather than all name-type unique identifiers. ICANN still needs to ensure the "stable and secure operation", also. Those two points ought to combine to restrict ICANN's freedom of movement on any particular content or service, because the only option ICANN would have would be to remove the delegation from the root zone.
I'm afraid your assumption that "the only option ICANN would have would be to remove the delegation from the root zone." If ICANN were to attempt the regulation of the content of web sites, the means by which it would do so would be i) to write into Registry agreements a duty to ensure that that content does not appear, and to take enforcement actions if it does; and ii) in the event that the Registry fails to enforce the prohibition of certain content, to enforce its contract against the Registry This can be done without removing the delegation from the root zone. Absent a specific prohibition, it will be very difficult to be confident that ICANN will not behave as above (or, if it did, that it could be successfully challenged). The existence of a contract between ICANN and the Registry, and the enforcement thereof in case of breach, is both necessary and desirable, so we can't have anything that says or means that having such a contract or its enforcement is prohibited to ICANN. All the remains is to preclude ICANN from including certain provision in such a contract. I can't see how that level of granularity can be achieved without a specific prohibition. I hope this clarifies why we think that the prohibition is necessary.
I hope this is helpful; and again, I'm not trying to butt in, so please feel free to tell me to take a long walk into the changing tide!
Not at all, your interventions are very welcome, and all participation is welcome and valid. Any references to taking a long walk will be addressed only to your argument :-) -- 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
Hi, (following the CCWG meeting with interest.) On Tue, Nov 10, 2015 at 10:12:07AM +0000, Malcolm Hutty wrote:
Great, so we're in agreement about the underlying aim here.
I think we are in strong agreement that ICANN's job is not to be the Internet Police, yes. For whatever it's worth, I don't know a single Board or staff member who wants that job, either, so the question is really just how to ensure ICANN's mission is appropriately tight.
I'm afraid your assumption that "the only option ICANN would have would be to remove the delegation from the root zone."
If ICANN were to attempt the regulation of the content of web sites, the means by which it would do so would be
i) to write into Registry agreements a duty to ensure that that content does not appear, and to take enforcement actions if it does; and ii) in the event that the Registry fails to enforce the prohibition of certain content, to enforce its contract against the Registry
This can be done without removing the delegation from the root zone.
How? ICANN has basically two sticks at its disposal: it can sue people, or it can remove the delegation. Apart from that, it's hard to see what force ICANN has to bring to bear. But I think that's a distraction, because I reject the premise that ICANN would be in a position to write those terms into the agreements in the first place, because that would be ICANN stepping beyond its mission, unless you think that such policies could be reasonably covered by these terms: • For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability: • That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. It seems to me that it would be hard to argue ICANN could impose the terms this way, because they wouldn't be consensus-based or bottom-up. I'd go futher and suggest that such policies would not be designed to ensure stable and secure operation, either; neither would they be reasonably necessary for openness, interoperability, resilience, security, or stability. So I think the basis for rejecting such overreach is already in the mission text we all seem to like.
I hope this clarifies why we think that the prohibition is necessary.
It does, but I'm not convinced by the premise. Again, however, I haven't been around this many times and it's strictly speaking not the issue I'm here to contribute on, so I won't say more about it. But for me, the narrowness of the reworded mission rewards us with many benefits, and I think the "regulator" case is one of them.
Any references to taking a long walk will be addressed only to your argument :-)
I should hope that will ever be true! A -- Andrew Sullivan ajs@anvilwalrusden.com
On 10/11/2015 12:25, Andrew Sullivan wrote:
If ICANN were to attempt the regulation of the content of web sites, the means by which it would do so would be
i) to write into Registry agreements a duty to ensure that that content does not appear, and to take enforcement actions if it does; and ii) in the event that the Registry fails to enforce the prohibition of certain content, to enforce its contract against the Registry
This can be done without removing the delegation from the root zone.
How? ICANN has basically two sticks at its disposal: it can sue people, or it can remove the delegation. Apart from that, it's hard to see what force ICANN has to bring to bear.
You answer your own question. If someone has contracted with ICANN to do something, ICANN can insist upon it. It may sue if necessary, but usually this won't be necessary because it will be obvious that if it does it will win. ICANN should be prevented from entering into an agreement whose purpose is to achieve something that it is outside ICANN's Mission to seek to achieve. If we say otherwise, and allow ICANN to do anything
But I think that's a distraction, because I reject the premise that ICANN would be in a position to write those terms into the agreements in the first place, because that would be ICANN stepping beyond its mission, unless you think that such policies could be reasonably covered by these terms:
• For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability: • That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems.
Andrew, I think you have misunderstood what is being proposed by those who disagree with me. What our colleagues are proposing is to override this clause. They are saying that ICANN should be able to do anything allowed by the above, *plus also* to enter into and enforce agreements that go far outside what is allowed by the above. So if a Registry offers to promise that the CEO will greet Fadi every Monday morning by tapdancing in Fadi's office, then they say ICANN should be permitted to enter into that contract and enforce it, provided only that the Registry's offer was made "voluntarily" (whatever that means in practice.
It seems to me that it would be hard to argue ICANN could impose the terms this way, because they wouldn't be consensus-based or bottom-up.
These agreements are in addition to consensus-based bottom-up policy. -- 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
On Tue, Nov 10, 2015 at 01:27:25PM +0000, Malcolm Hutty wrote:
What our colleagues are proposing is to override this clause. They are saying that ICANN should be able to do anything allowed by the above, *plus also* to enter into and enforce agreements that go far outside what is allowed by the above.
I fully agree (see my other note, inspired differently) that such an addition is the opposite of what I think we want. I also think it's the opposite of what the various public comments said. I think people want ICANN to stick to its knitting. I sure do. A -- Andrew Sullivan ajs@anvilwalrusden.com
We cannot be adding such mission creep holes into the draft at this 12th hour. The consensus has always been to ensure ICANN will 'stick to its knitting' and not use contracts as a means to expand ICANN's mission and scope. CCWG never said we had to have unanimous consensus, there will always be more things that some want and don't get into the final draft because the vast majority of the community are against such creep. Adding this fundamentally different direction to ICANN's mission from everything we put out before and received support for before is not something we can do and call this process legitimate. What IPC proposes, creates a giant hole in all the other careful efforts to limit ICANN's mission that a truck can be driven through. This process is not an appropriate place for constituencies to alter other basic fundamental principles of ICANN, importantly, that ICANN does NOT engage in content regulation. Permitting such a revision at this 12th hour is entirely unacceptable on both process and substance levels. Robin On Nov 10, 2015, at 6:37 AM, Andrew Sullivan wrote:
On Tue, Nov 10, 2015 at 01:27:25PM +0000, Malcolm Hutty wrote:
What our colleagues are proposing is to override this clause. They are saying that ICANN should be able to do anything allowed by the above, *plus also* to enter into and enforce agreements that go far outside what is allowed by the above.
I fully agree (see my other note, inspired differently) that such an addition is the opposite of what I think we want. I also think it's the opposite of what the various public comments said. I think people want ICANN to stick to its knitting. I sure do.
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
while mindful of Paul Rosenzweig¹s legislative history concern, it is the risk of inadvertently over-riding or confusing the description of ICANN¹s names-related mission that worries me most in our present efforts to find language that captures a very nuanced position 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> On 11/10/15, 8:27 AM, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 10/11/2015 12:25, Andrew Sullivan wrote:
If ICANN were to attempt the regulation of the content of web sites, the means by which it would do so would be
i) to write into Registry agreements a duty to ensure that that content does not appear, and to take enforcement actions if it does; and ii) in the event that the Registry fails to enforce the prohibition of certain content, to enforce its contract against the Registry
This can be done without removing the delegation from the root zone.
How? ICANN has basically two sticks at its disposal: it can sue people, or it can remove the delegation. Apart from that, it's hard to see what force ICANN has to bring to bear.
You answer your own question.
If someone has contracted with ICANN to do something, ICANN can insist upon it. It may sue if necessary, but usually this won't be necessary because it will be obvious that if it does it will win.
ICANN should be prevented from entering into an agreement whose purpose is to achieve something that it is outside ICANN's Mission to seek to achieve. If we say otherwise, and allow ICANN to do anything
But I think that's a distraction, because I reject the premise that ICANN would be in a position to write those terms into the agreements in the first place, because that would be ICANN stepping beyond its mission, unless you think that such policies could be reasonably covered by these terms:
€ For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability: € That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet¹s unique names systems.
Andrew, I think you have misunderstood what is being proposed by those who disagree with me.
What our colleagues are proposing is to override this clause. They are saying that ICANN should be able to do anything allowed by the above, *plus also* to enter into and enforce agreements that go far outside what is allowed by the above.
So if a Registry offers to promise that the CEO will greet Fadi every Monday morning by tapdancing in Fadi's office, then they say ICANN should be permitted to enter into that contract and enforce it, provided only that the Registry's offer was made "voluntarily" (whatever that means in practice.
It seems to me that it would be hard to argue ICANN could impose the terms this way, because they wouldn't be consensus-based or bottom-up.
These agreements are in addition to consensus-based bottom-up policy.
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Good evening, Having listened to the debate on the CCWG conference call earlier today, may I offer a few reflections on the issue to hand: 1. insofar as this discussion is a ramification of the classic debate between IPR and ISP over intermediary liability, I suggest that will not be resolved in the ICANN context. There are other fora to address that, which may take into account 'content' and 'services' which are beyond ICANN's scope. 2. Whilst sympathising with Malcolm's narrow definition of ICANN's mandate, I think he takes his case a step or two too far. (a) there are not, in my view, 'voluntary' contractual conditions. If a TLD is delegated upon certain conditions, then those must be respected. Thus I concur with Alain's insistence that such conditions shall be enforceable. (Particularly if they are formal 'Public Interest Conditions, aka PICs'.) Also, please bear in mind that the general obligation on ICANN to respect applicable local law (Article 4 of the Articles of Incorporation) extends to all its contracted parties. (b) ICANN and the Registry/Registrar applicants for new gTLDs have allowed new TLDs in otherwise strictly regulated sectors under applicable local laws. As was once said 'nobody asked you … ', but having done so, those Registries (and their Registrar owners) have placed themselves in the mainstream of the regulation of content for the benefit of users and the general public in the sectors concerned. Thus, either ICANN has to enforce conditions in those DNS markets that (pace Malcolm) go well beyond the narrow ICANN mandate, or ICANN and those Registries/Registrars should never have got themselves into those putative DNS markets in the first place. 3. From a more general economic point of view, I expect these issues to become really, really, serious because of the low take-up and problematic viability of numbers of the new gTLDs. I expect that the pressure will be on to apply restrictions and obligations as flexibly as possible for the sake of the survival of otherwise questionable excursions into niches of the DNS, where public policy issues might be perceived as burdensome if not irrelevant. Just a few thoughts CW On 10 Nov 2015, at 14:27, Malcolm Hutty <malcolm@linx.net> wrote:
On 10/11/2015 12:25, Andrew Sullivan wrote:
If ICANN were to attempt the regulation of the content of web sites, the means by which it would do so would be
i) to write into Registry agreements a duty to ensure that that content does not appear, and to take enforcement actions if it does; and ii) in the event that the Registry fails to enforce the prohibition of certain content, to enforce its contract against the Registry
This can be done without removing the delegation from the root zone.
How? ICANN has basically two sticks at its disposal: it can sue people, or it can remove the delegation. Apart from that, it's hard to see what force ICANN has to bring to bear.
You answer your own question.
If someone has contracted with ICANN to do something, ICANN can insist upon it. It may sue if necessary, but usually this won't be necessary because it will be obvious that if it does it will win.
ICANN should be prevented from entering into an agreement whose purpose is to achieve something that it is outside ICANN's Mission to seek to achieve. If we say otherwise, and allow ICANN to do anything
But I think that's a distraction, because I reject the premise that ICANN would be in a position to write those terms into the agreements in the first place, because that would be ICANN stepping beyond its mission, unless you think that such policies could be reasonably covered by these terms:
• For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability: • That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems.
Andrew, I think you have misunderstood what is being proposed by those who disagree with me.
What our colleagues are proposing is to override this clause. They are saying that ICANN should be able to do anything allowed by the above, *plus also* to enter into and enforce agreements that go far outside what is allowed by the above.
So if a Registry offers to promise that the CEO will greet Fadi every Monday morning by tapdancing in Fadi's office, then they say ICANN should be permitted to enter into that contract and enforce it, provided only that the Registry's offer was made "voluntarily" (whatever that means in practice.
It seems to me that it would be hard to argue ICANN could impose the terms this way, because they wouldn't be consensus-based or bottom-up.
These agreements are in addition to consensus-based bottom-up policy.
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Good evening CW, Sorry 2b is not correct . Registries that originally applied for a "closed generic " have now been required to change their business model to an "open generic" in any particular vertical. Only one, Scripps' .food delegation has slipped through the net. http://domainincite.com/?s=scripps+.food+ No Registrar is an owner of a new TLD Registry. I have agree that ICANN's scope,mandate is deliberately narrow. ICANN current mandate has nothing to do with content, but delegations into the root zone. We open up a hornets nest if we change the scope to content management/ enforcement. ICANN can currently (for each Registry contract) bring in an EBERO to manage/ enforce the contract and so must ensure TLD Registrations continue to resolve. ICANN just can't withdraw the delegation from the root zone or can it ? Regards, Phil From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Christopher Wilkinson Sent: 10 November 2015 18:17 To: accountability-cross-community@icann.org Accountability Subject: Re: [CCWG-ACCT] Mission/Contract Good evening, Having listened to the debate on the CCWG conference call earlier today, may I offer a few reflections on the issue to hand: 1. insofar as this discussion is a ramification of the classic debate between IPR and ISP over intermediary liability, I suggest that will not be resolved in the ICANN context. There are other fora to address that, which may take into account 'content' and 'services' which are beyond ICANN's scope. 2. Whilst sympathising with Malcolm's narrow definition of ICANN's mandate, I think he takes his case a step or two too far. (a) there are not, in my view, 'voluntary' contractual conditions. If a TLD is delegated upon certain conditions, then those must be respected. Thus I concur with Alain's insistence that such conditions shall be enforceable. (Particularly if they are formal 'Public Interest Conditions, aka PICs'.) Also, please bear in mind that the general obligation on ICANN to respect applicable local law (Article 4 of the Articles of Incorporation) extends to all its contracted parties. (b) ICANN and the Registry/Registrar applicants for new gTLDs have allowed new TLDs in otherwise strictly regulated sectors under applicable local laws. As was once said 'nobody asked you . ', but having done so, those Registries (and their Registrar owners) have placed themselves in the mainstream of the regulation of content for the benefit of users and the general public in the sectors concerned. Thus, either ICANN has to enforce conditions in those DNS markets that (pace Malcolm) go well beyond the narrow ICANN mandate, or ICANN and those Registries/Registrars should never have got themselves into those putative DNS markets in the first place. 3. From a more general economic point of view, I expect these issues to become really, really, serious because of the low take-up and problematic viability of numbers of the new gTLDs. I expect that the pressure will be on to apply restrictions and obligations as flexibly as possible for the sake of the survival of otherwise questionable excursions into niches of the DNS, where public policy issues might be perceived as burdensome if not irrelevant. Just a few thoughts CW On 10 Nov 2015, at 14:27, Malcolm Hutty <malcolm@linx.net> wrote: On 10/11/2015 12:25, Andrew Sullivan wrote: If ICANN were to attempt the regulation of the content of web sites, the means by which it would do so would be i) to write into Registry agreements a duty to ensure that that content does not appear, and to take enforcement actions if it does; and ii) in the event that the Registry fails to enforce the prohibition of certain content, to enforce its contract against the Registry This can be done without removing the delegation from the root zone. How? ICANN has basically two sticks at its disposal: it can sue people, or it can remove the delegation. Apart from that, it's hard to see what force ICANN has to bring to bear. You answer your own question. If someone has contracted with ICANN to do something, ICANN can insist upon it. It may sue if necessary, but usually this won't be necessary because it will be obvious that if it does it will win. ICANN should be prevented from entering into an agreement whose purpose is to achieve something that it is outside ICANN's Mission to seek to achieve. If we say otherwise, and allow ICANN to do anything But I think that's a distraction, because I reject the premise that ICANN would be in a position to write those terms into the agreements in the first place, because that would be ICANN stepping beyond its mission, unless you think that such policies could be reasonably covered by these terms: . For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability: . That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems. Andrew, I think you have misunderstood what is being proposed by those who disagree with me. What our colleagues are proposing is to override this clause. They are saying that ICANN should be able to do anything allowed by the above, *plus also* to enter into and enforce agreements that go far outside what is allowed by the above. So if a Registry offers to promise that the CEO will greet Fadi every Monday morning by tapdancing in Fadi's office, then they say ICANN should be permitted to enter into that contract and enforce it, provided only that the Registry's offer was made "voluntarily" (whatever that means in practice. It seems to me that it would be hard to argue ICANN could impose the terms this way, because they wouldn't be consensus-based or bottom-up. These agreements are in addition to consensus-based bottom-up policy. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Something someone asked me in the hall suggests to me that I wasn't terribly clear, so let me expand a tiny bit despite the horror of responding to myself. On Tue, Nov 10, 2015 at 07:25:48AM -0500, Andrew Sullivan wrote:
It seems to me that it would be hard to argue ICANN could impose the terms this way, because they wouldn't be consensus-based or bottom-up. I'd go futher and suggest that such policies would not be designed to ensure stable and secure operation, either; neither would they be reasonably necessary for openness, interoperability, resilience, security, or stability. So I think the basis for rejecting such overreach is already in the mission text we all seem to like.
I should have noted that this is true in my opinion _only if_ the mission stops with the terms above and maybe a statement that ICANN won't step outside its mission. This is roughly, I think, what Becky suggested before. I know some people disagreed with that approach, but I thought it was excellent. I am a little concerned about any addition that would permit various excursions beyond the mission if it were in some agreement to which ICANN were a party. That opens the same problem that got us into discussing the chapeau: it's a route by which people could conceivably entangle ICANN in issues outside ICANN's proper remit, even if ICANN didn't intend that (in this case, by getting some vague language into a contract and then refusing IRP on the grounds that it is too in the mission). In general, I think the Internet and ICANN are both best protected by a narrow, specific ICANN mission with an explicit limitation to that mission. I think we mostly have that, but let's be careful not to over-egg the custard. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Becky, I think we had all agreed to drop the phrase "not engage in or use its powers to attempt the" My proposal of 6th November was intended to omit those words; they survived only as an artifact of copy/paste accidentally picking up deleted text, not because I wished to revive them. Malcolm On 10/11/2015 00:09, Burr, Becky wrote:
All -
In advance of our call tomorrow I want to flag the open issue in the Mission Statement – language prohibiting ICANN from regulating "services that use the Internet’s unique identifiers or the content that they carry or provide."
While there is strong consensus that (1) ICANN’s mission is limited and (2) ICANN should act only in furtherance of its mission, strong and divergent perspectives on the proposed language itself remain. The language has been in the proposed Mission Statement since our Frankfurt meeting last January. Numerous commenters supported the language in both the first and second comment periods on the grounds that ICANN should not attempt to regulate third parties through its agreements with registries and registrars. On the other hand, many commenters expressed concerns about potential unintended consequences of this language, and the impact that it might have, for example, on ICANN’s ability to enforce commitments contained in registry and/or registrar commitments (e.g., Public Interest Commitments, special-interest new gTLD applications, etc.).
The following chart (also attached as a PDF) compares the language in the 2nd Draft Report with language circulated shortly following the Dublin meeting, and suggested language proposed by Greg Shatan and Malcolm Hutty respectively to resolve this issue. (Another approach, which I floated, was strongly criticized.) As we review and discuss this language tomorrow, please keep in mind that we have always been clear that the language in the proposed Mission Statement is not final Bylaws language, rather it intended to guide those crafting final Bylaws. I look forward to a fruitful discussion in 12 hours!
2^nd Draft Report Language
Post-Dublin Language
Greg Shatan Proposal 2 Nov 2015
Malcolm Hutty Proposal 6 Nov 2015
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.
ICANN shall have no power to act strictlyother thanin accordance with, and only as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
In service of its MissionICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission.
Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide.
ICANN and contracted parties entering into, complying with and enforcing agreements does not constitute regulation.
In service of its Mission, ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
ICANN shall only act strictly in accordance withand as reasonably appropriate to achieveits Mission.
Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate or the content that those services carry or provide.
ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.
subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars
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*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>
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participants (9)
-
Andrew Sullivan -
Burr, Becky -
Christopher Wilkinson -
Greg Shatan -
Malcolm Hutty -
Nigel Roberts -
Phil Buckingham -
Robin Gross -
Seun Ojedeji