Re: [CCWG-ACCT] WP2 Issues from last night's call
Taking off Andrew and the IAB folks as this is not their issue W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples Se S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they? Bradley Silver Chief Intellectual PropertyCounsel | Time Warner Inc. One Time Warner Center New York, NY 10019-8016 | P: 212 484 8869 | F: 212 658 9293 [cid:image004.png@01D11648.738D46F0] From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, November 04, 2015 11:33 AM To: Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific examples (without limitation), including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION 1. Consensus Policies. 1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following: 1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); 1.2.2. functional and performance specifications for the provision of Registrar Services; 1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry; 1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or 1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation: 1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars; 1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); 1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; 1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and 1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 1.4. In addition to the other limitations on Consensus Policies, they shall not: 1.4.1. prescribe or limit the price of Registrar Services; 1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies; 1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or 1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner. 2. Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies"). 2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws. 2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders. 2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy. 3. Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 11:03 AM To: 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”? Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Wednesday, November 04, 2015 10:59 AM To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan, If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation. Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide." So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=A8DtJCyVMLau-WRON7AQ_czu4FzwQSRY5CwKB3_lfYQ&e=> 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<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=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=iCNwcPAMpoUQGaoDRWeh9IT72SUScm3T-i7MFMaS454&e=> ================================================================= 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. =================================================================
Becky, Thanks for that clarification. Looking at Section 1.2 of Specification 1, there are 5 subsections. The language imported into the Mission mirrors Section 1.2.1. How are Section 1.2.2 through 1.2.5 given the same protection? Thanks! Greg On Wed, Nov 4, 2015 at 3:45 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Taking off Andrew and the IAB folks as this is not their issue
W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples
Se
S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer
From: <Silver>, Bradley <Bradley.Silver@timewarner.com> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>, Andrew Sullivan < ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call
Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they?
*Bradley Silver Chief Intellectual Property**Counsel |* *Time Warner Inc. *
One Time Warner Center New York, NY 10019-8016 *|* P: 212 484 8869 *|* F: 212 658 9293
[image: cid:image004.png@01D11648.738D46F0]
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Wednesday, November 04, 2015 11:33 AM *To:* Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific *examples (without limitation)*, including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION
1. *Consensus Policies.*
1.1. "*Consensus Policies*" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein.
1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following:
1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS");
1.2.2. functional and performance specifications for the provision of Registrar Services;
1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry;
1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or
1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated.
1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation:
1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration);
1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars;
1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration);
1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers;
1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and
1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names.
1.4. In addition to the other limitations on Consensus Policies, they shall not:
1.4.1. prescribe or limit the price of Registrar Services;
1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies;
1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or
1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner.
2. *Temporary Policies.* Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "*Board*") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("*Temporary Policies*").
2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws.
2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders.
2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy.
3. *Notice and Conflicts.* Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification.
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Metalitz>, Steven Metalitz <met@msk.com> *Date: *Wednesday, November 4, 2015 at 11:03 AM *To: *'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Becky Burr <becky.burr@neustar.biz>, Accountability Community <accountability-cross-community@icann.org>, Andrew Sullivan <ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”?
Steve Metalitz
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Malcolm Hutty *Sent:* Wednesday, November 04, 2015 10:59 AM *To:* Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan,
If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation.
Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide."
So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion.
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__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 <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
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Thank you for pointing that out, Becky. Do you think it's clear that the role of "coordinator" of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet's unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of "regulate" seems to clearly cover (and therefore prohibit) the activity of accreditation - even when read alongside the earlier reference to ICANN's function as "coordinator". Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to "regulation"- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination. From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 3:46 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Taking off Andrew and the IAB folks as this is not their issue W As part of this process we have captured and imported the essence of the "picket fence" - the "what" (as opposed to the "how") of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN's Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called "picket fence" are within ICANN's Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples Se S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Becky and all - I'm new to this thread but have been following this issue for some time. I'm still confused as to how Spec 1 clarifies the "regulation" language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don't they? Bradley Silver Chief Intellectual PropertyCounsel | Time Warner Inc. One Time Warner Center New York, NY 10019-8016 | P: 212 484 8869 | F: 212 658 9293 [cid:image001.png@01D11718.EDAF5600] From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, November 04, 2015 11:33 AM To: Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes "resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific examples (without limitation), including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION ? Consensus Policies. 1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following: 1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); 1.2.2. functional and performance specifications for the provision of Registrar Services; 1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry; 1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or 1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation: 1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars; 1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); 1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; 1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and 1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 1.4. In addition to the other limitations on Consensus Policies, they shall not: 1.4.1. prescribe or limit the price of Registrar Services; 1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies; 1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or 1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner. ? Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies"). 2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws. 2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders. 2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy. ? Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 11:03 AM To: 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, can you explain how domain name registration is not a "service that uses the Internet's unique identifiers"? Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Wednesday, November 04, 2015 10:59 AM To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan, If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation. Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide." So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=A8DtJCyVMLau-WRON7AQ_czu4FzwQSRY5CwKB3_lfYQ&e=> 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<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=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=iCNwcPAMpoUQGaoDRWeh9IT72SUScm3T-i7MFMaS454&e=> ================================================================= 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. ================================================================= ================================================================= 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. =================================================================
This argument doesn’t make a lot of sense to me. ICANN has always accredited – both registries and registrars. Is there a serious argument to be had that this is outside the Mission? J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 4:20 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Thank you for pointing that out, Becky. Do you think it’s clear that the role of “coordinator” of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet’s unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of “regulate” seems to clearly cover (and therefore prohibit) the activity of accreditation – even when read alongside the earlier reference to ICANN’s function as “coordinator”. Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to “regulation”- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination. From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 3:46 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Taking off Andrew and the IAB folks as this is not their issue W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples Se S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they? Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. One Time Warner Center New York, NY 10019-8016 | P: 212 484 8869 | F: 212 658 9293 [cid:image004.png@01D11648.738D46F0] From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, November 04, 2015 11:33 AM To: Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific examples (without limitation), including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION ? Consensus Policies. 1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following: 1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); 1.2.2. functional and performance specifications for the provision of Registrar Services; 1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry; 1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or 1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation: 1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars; 1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); 1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; 1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and 1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 1.4. In addition to the other limitations on Consensus Policies, they shall not: 1.4.1. prescribe or limit the price of Registrar Services; 1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies; 1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or 1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner. ? Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies"). 2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws. 2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders. 2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy. ? Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 11:03 AM To: 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”? Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Wednesday, November 04, 2015 10:59 AM To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan, If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation. Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide." So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=A8DtJCyVMLau-WRON7AQ_czu4FzwQSRY5CwKB3_lfYQ&e=> 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<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=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=iCNwcPAMpoUQGaoDRWeh9IT72SUScm3T-i7MFMaS454&e=> ================================================================= 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. ================================================================= ================================================================= 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. =================================================================
The argument is only serious, I think, because the Mission is being amended to include a prohibition which facially covers an activity that ICANN is engaged in. ICANN's history of accreditation never had to be justified against such a prohibition, because it wasn't there. From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 4:26 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call This argument doesn't make a lot of sense to me. ICANN has always accredited - both registries and registrars. Is there a serious argument to be had that this is outside the Mission? J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 4:20 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Thank you for pointing that out, Becky. Do you think it's clear that the role of "coordinator" of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet's unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of "regulate" seems to clearly cover (and therefore prohibit) the activity of accreditation - even when read alongside the earlier reference to ICANN's function as "coordinator". Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to "regulation"- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination. From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 3:46 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Taking off Andrew and the IAB folks as this is not their issue W As part of this process we have captured and imported the essence of the "picket fence" - the "what" (as opposed to the "how") of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN's Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called "picket fence" are within ICANN's Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples Se S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Becky and all - I'm new to this thread but have been following this issue for some time. I'm still confused as to how Spec 1 clarifies the "regulation" language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don't they? Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. One Time Warner Center New York, NY 10019-8016 | P: 212 484 8869 | F: 212 658 9293 [cid:image001.png@01D1171E.05FC65E0] From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, November 04, 2015 11:33 AM To: Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes "resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific examples (without limitation), including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION ? Consensus Policies. 1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following: 1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); 1.2.2. functional and performance specifications for the provision of Registrar Services; 1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry; 1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or 1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation: 1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars; 1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); 1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; 1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and 1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 1.4. In addition to the other limitations on Consensus Policies, they shall not: 1.4.1. prescribe or limit the price of Registrar Services; 1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies; 1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or 1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner. ? Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies"). 2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws. 2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders. 2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy. ? Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 11:03 AM To: 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, can you explain how domain name registration is not a "service that uses the Internet's unique identifiers"? Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Wednesday, November 04, 2015 10:59 AM To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan, If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation. Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide." So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=A8DtJCyVMLau-WRON7AQ_czu4FzwQSRY5CwKB3_lfYQ&e=> 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<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=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=iCNwcPAMpoUQGaoDRWeh9IT72SUScm3T-i7MFMaS454&e=> ================================================================= 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. ================================================================= ================================================================= 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. ================================================================= ================================================================= 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. =================================================================
Hi, This is just a note from someone who's a latecomer and mostly observing, so take it for what it's worth. But since I have less history with some of the text, maybe fresh eyes can be helpful. If not, feel free to ignore. On Wed, Nov 04, 2015 at 04:29:49PM -0500, Silver, Bradley wrote:
The argument is only serious, I think, because the Mission is being amended to include a prohibition which facially covers an activity that ICANN is engaged in. ICANN's history of accreditation never had to be justified against such a prohibition, because it wasn't there.
From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 4:26 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call
This argument doesn't make a lot of sense to me. ICANN has always accredited - both registries and registrars. Is there a serious argument to be had that this is outside the Mission?
It is pretty clear that ICANN has always accredited, and doing so has been reasonable because of ICANN's actual mission (i.e. the one it has been doing). People wanted (as I understand it, and I think correctly) a prohibition against a number of specific things because of worries about overreach and historical patterns of behaviour. It strikes me that perhaps some of that history is because the mission text was too broad for the actual mission, and if we come up with a mission that is appropriately limited to what ICANN actually does then the specific prohibitions might be unnecessary. This observation applies I think to more than one of the current text questions: if the additional text is actually obviated by a more narrow mission, perhaps it can be left out if we get a narrow mission statement to begin with. As Saint Exupéry had it, "Il semble que la perfection soit atteinte non quand il n'y a plus rien à ajouter, mais quand il n'y a plus rien à retrancher." I hope I'm not speaking out of turn; and again, if this isn't helpful just ignore me. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
The argument is serious because the proposal is to amend the Mission to exclude "regulation of services that use unique identifiers." This brings me back to the question whether domain name registration is such a service, and then Bradley's question whether registrar accreditation is a regulation of that service. There certainly seems to be a serious argument that the answer to each question is "yes," and if so, then this change to ICANN's mission would bring into serious question ICANN's authority to continue registrar accreditation --- without regard to the fact that, under a Mission statement that always lacked the ban on "regulation of services," ICANN has "always accredited." From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 4:26 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call This argument doesn't make a lot of sense to me. ICANN has always accredited - both registries and registrars. Is there a serious argument to be had that this is outside the Mission? J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 4:20 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Thank you for pointing that out, Becky. Do you think it's clear that the role of "coordinator" of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet's unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of "regulate" seems to clearly cover (and therefore prohibit) the activity of accreditation - even when read alongside the earlier reference to ICANN's function as "coordinator". Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to "regulation"- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination. From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 3:46 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Taking off Andrew and the IAB folks as this is not their issue W As part of this process we have captured and imported the essence of the "picket fence" - the "what" (as opposed to the "how") of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN's Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called "picket fence" are within ICANN's Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples Se S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Becky and all - I'm new to this thread but have been following this issue for some time. I'm still confused as to how Spec 1 clarifies the "regulation" language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don't they? Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. One Time Warner Center New York, NY 10019-8016 | P: 212 484 8869 | F: 212 658 9293 [cid:image004.png@01D11648.738D46F0] From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, November 04, 2015 11:33 AM To: Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes "resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific examples (without limitation), including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION ? Consensus Policies. 1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following: 1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); 1.2.2. functional and performance specifications for the provision of Registrar Services; 1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry; 1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or 1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation: 1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars; 1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); 1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; 1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and 1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 1.4. In addition to the other limitations on Consensus Policies, they shall not: 1.4.1. prescribe or limit the price of Registrar Services; 1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies; 1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or 1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner. ? Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies"). 2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws. 2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders. 2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy. ? Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 11:03 AM To: 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, can you explain how domain name registration is not a "service that uses the Internet's unique identifiers"? Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Wednesday, November 04, 2015 10:59 AM To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan, If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation. Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide." So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=A8DtJCyVMLau-WRON7AQ_czu4FzwQSRY5CwKB3_lfYQ&e=> 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<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=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=iCNwcPAMpoUQGaoDRWeh9IT72SUScm3T-i7MFMaS454&e=> ================================================================= 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. ================================================================= ================================================================= 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. =================================================================
Maybe we should include a reference to the Consensus and Temporary Policies Specification. Remember, this is not Bylaws language, rather it is instruction to drafting lawyers. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 4:36 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call The argument is serious because the proposal is to amend the Mission to exclude “regulation of services that use unique identifiers.” This brings me back to the question whether domain name registration is such a service, and then Bradley’s question whether registrar accreditation is a regulation of that service. There certainly seems to be a serious argument that the answer to each question is “yes,” and if so, then this change to ICANN’s mission would bring into serious question ICANN’s authority to continue registrar accreditation --- without regard to the fact that, under a Mission statement that always lacked the ban on “regulation of services,” ICANN has “always accredited.” From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 4:26 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call This argument doesn’t make a lot of sense to me. ICANN has always accredited – both registries and registrars. Is there a serious argument to be had that this is outside the Mission? J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 4:20 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Thank you for pointing that out, Becky. Do you think it’s clear that the role of “coordinator” of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet’s unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of “regulate” seems to clearly cover (and therefore prohibit) the activity of accreditation – even when read alongside the earlier reference to ICANN’s function as “coordinator”. Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to “regulation”- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination. From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 3:46 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Taking off Andrew and the IAB folks as this is not their issue W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples Se S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they? Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. One Time Warner Center New York, NY 10019-8016 | P: 212 484 8869 | F: 212 658 9293 [cid:image004.png@01D11648.738D46F0] From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, November 04, 2015 11:33 AM To: Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific examples (without limitation), including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION ? Consensus Policies. 1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following: 1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); 1.2.2. functional and performance specifications for the provision of Registrar Services; 1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry; 1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or 1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation: 1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars; 1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); 1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; 1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and 1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 1.4. In addition to the other limitations on Consensus Policies, they shall not: 1.4.1. prescribe or limit the price of Registrar Services; 1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies; 1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or 1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner. ? Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies"). 2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws. 2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders. 2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy. ? Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 11:03 AM To: 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”? Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Wednesday, November 04, 2015 10:59 AM To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan, If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation. Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide." So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=A8DtJCyVMLau-WRON7AQ_czu4FzwQSRY5CwKB3_lfYQ&e=> 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<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=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=iCNwcPAMpoUQGaoDRWeh9IT72SUScm3T-i7MFMaS454&e=> ================================================================= 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. ================================================================= ================================================================= 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. =================================================================
Becky and all, I have attached a revision to the proposed Bylaw under discussion, taking the comments from various quarters into account and trying to balance various concerns. Greg On Wed, Nov 4, 2015 at 4:56 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Maybe we should include a reference to the Consensus and Temporary Policies Specification. Remember, this is not Bylaws language, rather it is instruction to drafting lawyers.
J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer
From: <Metalitz>, Steven Metalitz <met@msk.com> Date: Wednesday, November 4, 2015 at 4:36 PM To: Becky Burr <becky.burr@neustar.biz>, "Silver, Bradley" < Bradley.Silver@timewarner.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg <alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>
Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call
The argument is serious because the proposal is to amend the Mission to exclude “regulation of services that use unique identifiers.” This brings me back to the question whether domain name registration is such a service, and then Bradley’s question whether registrar accreditation is a regulation of that service. There certainly seems to be a serious argument that the answer to each question is “yes,” and if so, then this change to ICANN’s mission would bring into serious question ICANN’s authority to continue registrar accreditation --- without regard to the fact that, under a Mission statement that always lacked the ban on “regulation of services,” ICANN has “always accredited.”
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>] *Sent:* Wednesday, November 04, 2015 4:26 PM *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
This argument doesn’t make a lot of sense to me. ICANN has always accredited – both registries and registrars. Is there a serious argument to be had that this is outside the Mission?
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Silver>, Bradley <Bradley.Silver@timewarner.com> *Date: *Wednesday, November 4, 2015 at 4:20 PM *To: *Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Thank you for pointing that out, Becky. Do you think it’s clear that the role of “coordinator” of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet’s unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of “regulate” seems to clearly cover (and therefore prohibit) the activity of accreditation – even when read alongside the earlier reference to ICANN’s function as “coordinator”. Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to “regulation”- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination.
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>] *Sent:* Wednesday, November 04, 2015 3:46 PM *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
Taking off Andrew and the IAB folks as this is not their issue
W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples
Se
S
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Silver>, Bradley <Bradley.Silver@timewarner.com> *Date: *Wednesday, November 4, 2015 at 12:02 PM *To: *Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>, Andrew Sullivan < ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they?
*Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. *
One Time Warner Center New York, NY 10019-8016 *|* P: 212 484 8869 *|* F: 212 658 9293
[image: cid:image004.png@01D11648.738D46F0]
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Wednesday, November 04, 2015 11:33 AM *To:* Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific *examples (without limitation)*, including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION
? *Consensus Policies.*
1.1. "*Consensus Policies*" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein.
1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following:
1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS");
1.2.2. functional and performance specifications for the provision of Registrar Services;
1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry;
1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or
1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated.
1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation:
1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration);
1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars;
1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration);
1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers;
1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and
1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names.
1.4. In addition to the other limitations on Consensus Policies, they shall not:
1.4.1. prescribe or limit the price of Registrar Services;
1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies;
1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or
1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner.
? *Temporary Policies.* Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "*Board*") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("*Temporary Policies*").
2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws.
2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders.
2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy.
? *Notice and Conflicts.* Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification.
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Metalitz>, Steven Metalitz <met@msk.com> *Date: *Wednesday, November 4, 2015 at 11:03 AM *To: *'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Becky Burr <becky.burr@neustar.biz>, Accountability Community <accountability-cross-community@icann.org>, Andrew Sullivan <ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”?
Steve Metalitz
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Malcolm Hutty *Sent:* Wednesday, November 04, 2015 10:59 AM *To:* Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan,
If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation.
Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide."
So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion.
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&...>
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Thanks Greg. That does not appear to balance the concerns of contracted parties, however. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Wednesday, November 4, 2015 at 5:06 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Steven Metalitz <met@msk.com<mailto:met@msk.com>>, "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Becky and all, I have attached a revision to the proposed Bylaw under discussion, taking the comments from various quarters into account and trying to balance various concerns. Greg On Wed, Nov 4, 2015 at 4:56 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: Maybe we should include a reference to the Consensus and Temporary Policies Specification. Remember, this is not Bylaws language, rather it is instruction to drafting lawyers. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 4:36 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call The argument is serious because the proposal is to amend the Mission to exclude “regulation of services that use unique identifiers.” This brings me back to the question whether domain name registration is such a service, and then Bradley’s question whether registrar accreditation is a regulation of that service. There certainly seems to be a serious argument that the answer to each question is “yes,” and if so, then this change to ICANN’s mission would bring into serious question ICANN’s authority to continue registrar accreditation --- without regard to the fact that, under a Mission statement that always lacked the ban on “regulation of services,” ICANN has “always accredited.” From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 4:26 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call This argument doesn’t make a lot of sense to me. ICANN has always accredited – both registries and registrars. Is there a serious argument to be had that this is outside the Mission? J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 4:20 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Thank you for pointing that out, Becky. Do you think it’s clear that the role of “coordinator” of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet’s unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of “regulate” seems to clearly cover (and therefore prohibit) the activity of accreditation – even when read alongside the earlier reference to ICANN’s function as “coordinator”. Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to “regulation”- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination. From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 3:46 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Taking off Andrew and the IAB folks as this is not their issue W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples Se S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they? Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. One Time Warner Center New York, NY 10019-8016 | P: 212 484 8869<tel:212%20484%208869> | F: 212 658 9293<tel:212%20658%209293> [cid:image004.png@01D11648.738D46F0] From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, November 04, 2015 11:33 AM To: Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific examples (without limitation), including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION ? Consensus Policies. 1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following: 1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); 1.2.2. functional and performance specifications for the provision of Registrar Services; 1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry; 1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or 1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation: 1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars; 1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); 1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; 1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and 1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 1.4. In addition to the other limitations on Consensus Policies, they shall not: 1.4.1. prescribe or limit the price of Registrar Services; 1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies; 1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or 1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner. ? Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies"). 2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws. 2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders. 2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy. ? Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 11:03 AM To: 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”? Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Wednesday, November 04, 2015 10:59 AM To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan, If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation. Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide." So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=A8DtJCyVMLau-WRON7AQ_czu4FzwQSRY5CwKB3_lfYQ&e=> 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<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=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=iCNwcPAMpoUQGaoDRWeh9IT72SUScm3T-i7MFMaS454&e=> ================================================================= 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. ================================================================= ================================================================= 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=6eTso-u1z4iP4vNoTW45oPxQvGHWVjSC6vur2UUk4B0&s=iWNyB8vxlm7yYWml1CCZ7cunCDTfknLfZ19sr7s1vJg&e=>
Becky, I think that the language that's there is sufficient to challenge any contractual provision that falls outside the Mission. For the reasons noted in my marginal comments, the reference to "checks and balances" didn't really seem to work (I know we used it as kind of a placeholder for a concept after Dublin, but as an instruction to lawyers or as a bylaw, I can't see how it fits). Maybe we need to try and say in plain English what the contracted parties want to see come out of this, and then leave the "bylaw-ification" to outside counsel in the drafting process. Based on what was there, I grasped neither the need nor the intent. I'm committed, as I know you are, to working this through until we achieve a consensus result. In spite of the invitation I received in this thread (not from you) to file a minority view if I didn't like where things stood (which is a polite way of suggesting an anatomical impossibility), I always operate under the assumption that consensus can be found if we continue exchanging views and drafts. As far as I can tell, you share that general approach. So let's see what we can accomplish. We may not be far off at all. Greg On Wed, Nov 4, 2015 at 5:20 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Thanks Greg. That does not appear to balance the concerns of contracted parties, however.
J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer
From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday, November 4, 2015 at 5:06 PM To: Becky Burr <becky.burr@neustar.biz> Cc: Steven Metalitz <met@msk.com>, "Silver, Bradley" < Bradley.Silver@timewarner.com>, Malcolm Hutty <malcolm@linx.net>, Alan Greenberg <alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call
Becky and all,
I have attached a revision to the proposed Bylaw under discussion, taking the comments from various quarters into account and trying to balance various concerns.
Greg
On Wed, Nov 4, 2015 at 4:56 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Maybe we should include a reference to the Consensus and Temporary Policies Specification. Remember, this is not Bylaws language, rather it is instruction to drafting lawyers.
J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer
From: <Metalitz>, Steven Metalitz <met@msk.com> Date: Wednesday, November 4, 2015 at 4:36 PM To: Becky Burr <becky.burr@neustar.biz>, "Silver, Bradley" < Bradley.Silver@timewarner.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg <alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>
Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call
The argument is serious because the proposal is to amend the Mission to exclude “regulation of services that use unique identifiers.” This brings me back to the question whether domain name registration is such a service, and then Bradley’s question whether registrar accreditation is a regulation of that service. There certainly seems to be a serious argument that the answer to each question is “yes,” and if so, then this change to ICANN’s mission would bring into serious question ICANN’s authority to continue registrar accreditation --- without regard to the fact that, under a Mission statement that always lacked the ban on “regulation of services,” ICANN has “always accredited.”
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>] *Sent:* Wednesday, November 04, 2015 4:26 PM *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
This argument doesn’t make a lot of sense to me. ICANN has always accredited – both registries and registrars. Is there a serious argument to be had that this is outside the Mission?
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Silver>, Bradley <Bradley.Silver@timewarner.com> *Date: *Wednesday, November 4, 2015 at 4:20 PM *To: *Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Thank you for pointing that out, Becky. Do you think it’s clear that the role of “coordinator” of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet’s unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of “regulate” seems to clearly cover (and therefore prohibit) the activity of accreditation – even when read alongside the earlier reference to ICANN’s function as “coordinator”. Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to “regulation”- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination.
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>] *Sent:* Wednesday, November 04, 2015 3:46 PM *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
Taking off Andrew and the IAB folks as this is not their issue
W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples
Se
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J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Silver>, Bradley <Bradley.Silver@timewarner.com> *Date: *Wednesday, November 4, 2015 at 12:02 PM *To: *Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>, Andrew Sullivan < ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they?
*Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. *
One Time Warner Center New York, NY 10019-8016 *|* P: 212 484 8869 *|* F: 212 658 9293
[image: cid:image004.png@01D11648.738D46F0]
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Wednesday, November 04, 2015 11:33 AM *To:* Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific *examples (without limitation)*, including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION
? *Consensus Policies.*
1.1. "*Consensus Policies*" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein.
1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following:
1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS");
1.2.2. functional and performance specifications for the provision of Registrar Services;
1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry;
1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or
1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated.
1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation:
1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration);
1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars;
1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration);
1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers;
1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and
1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names.
1.4. In addition to the other limitations on Consensus Policies, they shall not:
1.4.1. prescribe or limit the price of Registrar Services;
1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies;
1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or
1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner.
? *Temporary Policies.* Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "*Board*") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("*Temporary Policies*").
2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws.
2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders.
2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy.
? *Notice and Conflicts.* Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification.
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Metalitz>, Steven Metalitz <met@msk.com> *Date: *Wednesday, November 4, 2015 at 11:03 AM *To: *'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Becky Burr <becky.burr@neustar.biz>, Accountability Community <accountability-cross-community@icann.org>, Andrew Sullivan <ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”?
Steve Metalitz
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Malcolm Hutty *Sent:* Wednesday, November 04, 2015 10:59 AM *To:* Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan,
If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation.
Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide."
So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion.
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&...>
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Sorry, I was too short. I am reviewing. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Wednesday, November 4, 2015 at 5:06 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Steven Metalitz <met@msk.com<mailto:met@msk.com>>, "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Becky and all, I have attached a revision to the proposed Bylaw under discussion, taking the comments from various quarters into account and trying to balance various concerns. Greg On Wed, Nov 4, 2015 at 4:56 PM, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: Maybe we should include a reference to the Consensus and Temporary Policies Specification. Remember, this is not Bylaws language, rather it is instruction to drafting lawyers. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 4:36 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call The argument is serious because the proposal is to amend the Mission to exclude “regulation of services that use unique identifiers.” This brings me back to the question whether domain name registration is such a service, and then Bradley’s question whether registrar accreditation is a regulation of that service. There certainly seems to be a serious argument that the answer to each question is “yes,” and if so, then this change to ICANN’s mission would bring into serious question ICANN’s authority to continue registrar accreditation --- without regard to the fact that, under a Mission statement that always lacked the ban on “regulation of services,” ICANN has “always accredited.” From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 4:26 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call This argument doesn’t make a lot of sense to me. ICANN has always accredited – both registries and registrars. Is there a serious argument to be had that this is outside the Mission? J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 4:20 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Thank you for pointing that out, Becky. Do you think it’s clear that the role of “coordinator” of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet’s unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of “regulate” seems to clearly cover (and therefore prohibit) the activity of accreditation – even when read alongside the earlier reference to ICANN’s function as “coordinator”. Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to “regulation”- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination. From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, November 04, 2015 3:46 PM To: Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Taking off Andrew and the IAB folks as this is not their issue W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples Se S J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Wednesday, November 4, 2015 at 12:02 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they? Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. One Time Warner Center New York, NY 10019-8016 | P: 212 484 8869<tel:212%20484%208869> | F: 212 658 9293<tel:212%20658%209293> [cid:image004.png@01D11648.738D46F0] From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, November 04, 2015 11:33 AM To: Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific examples (without limitation), including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION ? Consensus Policies. 1.1. "Consensus Policies" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein. 1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following: 1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS"); 1.2.2. functional and performance specifications for the provision of Registrar Services; 1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry; 1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or 1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated. 1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation: 1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration); 1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars; 1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); 1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers; 1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and 1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names. 1.4. In addition to the other limitations on Consensus Policies, they shall not: 1.4.1. prescribe or limit the price of Registrar Services; 1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies; 1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or 1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner. ? Temporary Policies. Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "Board") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("Temporary Policies"). 2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws. 2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders. 2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy. ? Notice and Conflicts. Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification. J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: <Metalitz>, Steven Metalitz <met@msk.com<mailto:met@msk.com>> Date: Wednesday, November 4, 2015 at 11:03 AM To: 'Malcolm Hutty' <malcolm@linx.net<mailto:malcolm@linx.net>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com>>, "iab@iab.org<mailto:iab@iab.org>" <iab@iab.org<mailto:iab@iab.org>> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”? Steve Metalitz From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Wednesday, November 04, 2015 10:59 AM To: Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org<mailto:iab@iab.org> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan, If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation. Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide." So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=A8DtJCyVMLau-WRON7AQ_czu4FzwQSRY5CwKB3_lfYQ&e=> 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<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=CwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=yv-2vaZRUToupIoctB5N26jR1-FX1R8g20SyyjFmT-8&s=iCNwcPAMpoUQGaoDRWeh9IT72SUScm3T-i7MFMaS454&e=> ================================================================= 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. ================================================================= ================================================================= 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=6eTso-u1z4iP4vNoTW45oPxQvGHWVjSC6vur2UUk4B0&s=iWNyB8vxlm7yYWml1CCZ7cunCDTfknLfZ19sr7s1vJg&e=>
No problem. Balancing speed and attention to detail is another impossibility we are all trying our best to accomplish. Greg On Wed, Nov 4, 2015 at 5:28 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Sorry, I was too short. I am reviewing.
J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer
From: Greg Shatan <gregshatanipc@gmail.com> Date: Wednesday, November 4, 2015 at 5:06 PM To: Becky Burr <becky.burr@neustar.biz> Cc: Steven Metalitz <met@msk.com>, "Silver, Bradley" < Bradley.Silver@timewarner.com>, Malcolm Hutty <malcolm@linx.net>, Alan Greenberg <alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call
Becky and all,
I have attached a revision to the proposed Bylaw under discussion, taking the comments from various quarters into account and trying to balance various concerns.
Greg
On Wed, Nov 4, 2015 at 4:56 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Maybe we should include a reference to the Consensus and Temporary Policies Specification. Remember, this is not Bylaws language, rather it is instruction to drafting lawyers.
J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer
From: <Metalitz>, Steven Metalitz <met@msk.com> Date: Wednesday, November 4, 2015 at 4:36 PM To: Becky Burr <becky.burr@neustar.biz>, "Silver, Bradley" < Bradley.Silver@timewarner.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg <alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>
Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call
The argument is serious because the proposal is to amend the Mission to exclude “regulation of services that use unique identifiers.” This brings me back to the question whether domain name registration is such a service, and then Bradley’s question whether registrar accreditation is a regulation of that service. There certainly seems to be a serious argument that the answer to each question is “yes,” and if so, then this change to ICANN’s mission would bring into serious question ICANN’s authority to continue registrar accreditation --- without regard to the fact that, under a Mission statement that always lacked the ban on “regulation of services,” ICANN has “always accredited.”
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>] *Sent:* Wednesday, November 04, 2015 4:26 PM *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
This argument doesn’t make a lot of sense to me. ICANN has always accredited – both registries and registrars. Is there a serious argument to be had that this is outside the Mission?
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Silver>, Bradley <Bradley.Silver@timewarner.com> *Date: *Wednesday, November 4, 2015 at 4:20 PM *To: *Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Thank you for pointing that out, Becky. Do you think it’s clear that the role of “coordinator” of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet’s unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of “regulate” seems to clearly cover (and therefore prohibit) the activity of accreditation – even when read alongside the earlier reference to ICANN’s function as “coordinator”. Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to “regulation”- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination.
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>] *Sent:* Wednesday, November 04, 2015 3:46 PM *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
Taking off Andrew and the IAB folks as this is not their issue
W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples
Se
S
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Silver>, Bradley <Bradley.Silver@timewarner.com> *Date: *Wednesday, November 4, 2015 at 12:02 PM *To: *Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>, Andrew Sullivan < ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they?
*Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. *
One Time Warner Center New York, NY 10019-8016 *|* P: 212 484 8869 *|* F: 212 658 9293
[image: cid:image004.png@01D11648.738D46F0]
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Wednesday, November 04, 2015 11:33 AM *To:* Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific *examples (without limitation)*, including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION
? *Consensus Policies.*
1.1. "*Consensus Policies*" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein.
1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following:
1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS");
1.2.2. functional and performance specifications for the provision of Registrar Services;
1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry;
1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or
1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated.
1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation:
1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration);
1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars;
1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration);
1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers;
1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and
1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names.
1.4. In addition to the other limitations on Consensus Policies, they shall not:
1.4.1. prescribe or limit the price of Registrar Services;
1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies;
1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or
1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner.
? *Temporary Policies.* Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "*Board*") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("*Temporary Policies*").
2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws.
2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders.
2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy.
? *Notice and Conflicts.* Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification.
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Metalitz>, Steven Metalitz <met@msk.com> *Date: *Wednesday, November 4, 2015 at 11:03 AM *To: *'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Becky Burr <becky.burr@neustar.biz>, Accountability Community <accountability-cross-community@icann.org>, Andrew Sullivan <ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”?
Steve Metalitz
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Malcolm Hutty *Sent:* Wednesday, November 04, 2015 10:59 AM *To:* Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan,
If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation.
Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide."
So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion.
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&...>
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On 04/11/2015 22:06, Greg Shatan wrote:
Becky and all,
I have attached a revision to the proposed Bylaw under discussion, taking the comments from various quarters into account and trying to balance various concerns.
Greg
Thank you Greg. I think "strictly" should remain; the intent is indeed to ensure that ICANN remains within the Mission, and who is to say what kind of mission creep is "harmless". Your text also helpfully points out the unhelpfully vague nature of the phrase "as reasonably appropriate" in the first sentence. Let's delete it. I can agree with the inclusion of "negotiate and enter into", provided that this is also within the Mission. Attached is my suggestion for how we incorporate that phrase. The attached text is much simpler and more clear than anything we have had so far. If it is used, I think you will agree that there can be no suggestion nor any reasonable fear that ICANN's legitimate contracting authority is being brought into question. Can we settle on this? Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Malcolm, Thank you for this. I think it is a leap forward. I appreciate the effort and the spirit in which it is offered I still have to take more than a moment with it, but I think we are moving in the right direction, at least as regards our concerns. I still have an issue with the phrase "service that uses the Internet's unique identifiers." I've looked at this phrase a hundred times, and I would not have come up with the idea that it is limited to *hardware *(which are things, not services...). I think I'm far from alone in that. Also, the way you look at the clause "using the Internet's unique identifiers" is also not one that I would have taken away from this language. Registries and registrars clearly are services that use the Internet's unique identifiers; so does every other service business that uses the internet. Maybe as an IXP this has the meaning you think it has. But we need language that is agnostic of such distinctions, especially in a corporate bylaw. I spend much of my day looking at language at the intersection of law and technology, so I should be a good audience for something like this. As such I think the "misreading" is inherent in the language and not in the reader. To capture the meaning you attribute to the phrase in question, I would suggest the following: "[microprocessor controlled] technologies that use the Internet's unique identifiers to access the Internet" In this way, we have more explicitly limited the "service" as you suggest, and also limited the "use" as you suggest. And we avoid the ambiguity of the word "services," which clearly means very different things to different people. I look forward to your thoughts and those of others persevering on this thread. Greg On Wed, Nov 4, 2015 at 5:29 PM, Malcolm Hutty <malcolm@linx.net> wrote:
On 04/11/2015 22:06, Greg Shatan wrote:
Becky and all,
I have attached a revision to the proposed Bylaw under discussion, taking the comments from various quarters into account and trying to balance various concerns.
Greg
Thank you Greg. I think "strictly" should remain; the intent is indeed to ensure that ICANN remains within the Mission, and who is to say what kind of mission creep is "harmless".
Your text also helpfully points out the unhelpfully vague nature of the phrase "as reasonably appropriate" in the first sentence. Let's delete it.
I can agree with the inclusion of "negotiate and enter into", provided that this is also within the Mission.
Attached is my suggestion for how we incorporate that phrase.
The attached text is much simpler and more clear than anything we have had so far. If it is used, I think you will agree that there can be no suggestion nor any reasonable fear that ICANN's legitimate contracting authority is being brought into question.
Can we settle on this?
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Greg, Thank you also for being willing to consider my suggestion. Some brief comments to your specific points: On 04/11/2015 22:47, Greg Shatan wrote:
I still have an issue with the phrase "service that uses the Internet's unique identifiers." I've looked at this phrase a hundred times, and I would not have come up with the idea that it is limited to *_hardware_ *(which are things, not services...).
I agree, a service is not hardware. I assume you're replying to my mail, in particular where I referred to web servers and mail servers. These are not hardware, they are services. A web server is not a microprocessor, it is a data processing service that instantiated through software running on a microprocessor. But everyone (whether from the technology community or the law) calls it simply a "service".
Registries and registrars clearly are services that use the Internet's unique identifiers;
No, they really don't (or not in the relevant way). They enable the use of those identifiers. That's not the same thing. Imagine I go to GoDaddy and register hutty.com. Would you say that GoDaddy is using hutty.com? Surely not. When I point hutty.com at a mail server I operate, am I using hutty.com? Surely yes. Remember, this isn't going to be looked at by some sort of Cartesian "Evil Demon" that will be trying to twist the answer into precisely the opposite of what is reasonable, despite all evidence to the contrary. This will be looked at by the ICANN Board, quite possibly by the IRP, and - very unlikely, but with a faint possibility - by a court. The Board has every reason to interpret this how we would expect, and the IRP and the court are fair and impartial arbiter, not evil demons. So they will look at this phrase in the context of the rest of the Mission statement, and indeed the rest of the text. It really isn't as hard to interpret as you are making out.
To capture the meaning you attribute to the phrase in question, I would suggest the following:
"[microprocessor controlled] technologies that use the Internet's unique identifiers to access the Internet"
Honestly, I could accept that if really necessary, but it seems absurdly cumbersome.
In this way, we have more explicitly limited the "service" as you suggest, and also limited the "use" as you suggest. And we avoid the ambiguity of the word "services," which clearly means very different things to different people.
You play upon being a lawyer, but from your reasoning you make me wonder if you are a lawyer with an intellectual property specialism not used to telecoms law. Referring to "services" as I have described is, I assure you, entirely common within telecoms law within the EU and the UK - which is where I have direct knowledge. I do not have professional experience of US federal telecoms law, but as someone with a layman's interest I'm pretty confident the term is also in common use there. Moreover, the term "service" is also used to describe web service, mail service etc, in the manner I have described, amongst the technical community (Andrew? Are you still here? Could you confirm please, if you're following this thread?). And, taken as a whole, I think any reasonable layman would also understand the intent. ICANN gets to regulate the DNS system, in the manner and to the extent set out in more detail in other clauses. It doesn't get to regulate the rest of us, with entirely unrelated businesses, merely because we've signed up for a domain name. Seriously, the concept really isn't that difficult. I also happen to think the Food and Drug Agency can get to regulate food, without being granted unlimited lawmaking power over anyone that wants to eat. But hey, maybe that's just me. -- 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
I agree that the microprocessor language wasn't helpful. But, I don't agree with the distinction below of "enable" from "use". Neither registrars, nor registries, are necessary for services, whatever those may be, from being associated with unique identifiers. We never had to construe "competitive" to mean separate the registrar function from the registry function. Registrars are a consequence of a policy choice made decades after users started associating services with names that mapped, first via HOSTTABLES, and subsequently via the DNS. As for the non-necessity of registries, had our design choices been different (from munging the central point of failure of SRI-NIC as the HOSTTABLE publisher and the subsequent DNS zone file publisher), we might have made use of a mechanism to allocate unique strings -- aka "names" -- to addresses that does not require persistent state, let alone the rest of what we think of as a registry. To respond to the example Malcom offered, many registrars register names that for some period of time are not associated with the end user's mail service. To attach semantics to when the user takes over substantial control of the name-to-address association is just asking for trouble. I really recommend rethinking the absolutism and small c catholicism of "no service". Being this non-specific is going to cause people other than myself to ask "did they really mean that or are there some secret holes so that real work can be done?" Eric On 11/4/15 3:26 PM, Malcolm Hutty wrote:
Greg,
Thank you also for being willing to consider my suggestion.
Some brief comments to your specific points:
On 04/11/2015 22:47, Greg Shatan wrote:
I still have an issue with the phrase "service that uses the Internet's unique identifiers." I've looked at this phrase a hundred times, and I would not have come up with the idea that it is limited to *_hardware_ *(which are things, not services...). I agree, a service is not hardware. I assume you're replying to my mail, in particular where I referred to web servers and mail servers. These are not hardware, they are services. A web server is not a microprocessor, it is a data processing service that instantiated through software running on a microprocessor. But everyone (whether from the technology community or the law) calls it simply a "service".
Registries and registrars clearly are services that use the Internet's unique identifiers; No, they really don't (or not in the relevant way). They enable the use of those identifiers. That's not the same thing.
Imagine I go to GoDaddy and register hutty.com. Would you say that GoDaddy is using hutty.com? Surely not.
When I point hutty.com at a mail server I operate, am I using hutty.com? Surely yes.
Remember, this isn't going to be looked at by some sort of Cartesian "Evil Demon" that will be trying to twist the answer into precisely the opposite of what is reasonable, despite all evidence to the contrary. This will be looked at by the ICANN Board, quite possibly by the IRP, and - very unlikely, but with a faint possibility - by a court. The Board has every reason to interpret this how we would expect, and the IRP and the court are fair and impartial arbiter, not evil demons. So they will look at this phrase in the context of the rest of the Mission statement, and indeed the rest of the text. It really isn't as hard to interpret as you are making out.
To capture the meaning you attribute to the phrase in question, I would suggest the following:
"[microprocessor controlled] technologies that use the Internet's unique identifiers to access the Internet" Honestly, I could accept that if really necessary, but it seems absurdly cumbersome.
In this way, we have more explicitly limited the "service" as you suggest, and also limited the "use" as you suggest. And we avoid the ambiguity of the word "services," which clearly means very different things to different people. You play upon being a lawyer, but from your reasoning you make me wonder if you are a lawyer with an intellectual property specialism not used to telecoms law. Referring to "services" as I have described is, I assure you, entirely common within telecoms law within the EU and the UK - which is where I have direct knowledge. I do not have professional experience of US federal telecoms law, but as someone with a layman's interest I'm pretty confident the term is also in common use there.
Moreover, the term "service" is also used to describe web service, mail service etc, in the manner I have described, amongst the technical community (Andrew? Are you still here? Could you confirm please, if you're following this thread?).
And, taken as a whole, I think any reasonable layman would also understand the intent.
ICANN gets to regulate the DNS system, in the manner and to the extent set out in more detail in other clauses. It doesn't get to regulate the rest of us, with entirely unrelated businesses, merely because we've signed up for a domain name. Seriously, the concept really isn't that difficult.
I also happen to think the Food and Drug Agency can get to regulate food, without being granted unlimited lawmaking power over anyone that wants to eat. But hey, maybe that's just me.
I am good with Malcolm’s language J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer From: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Wednesday, November 4, 2015 at 5:47 PM To: Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steven Metalitz <met@msk.com<mailto:met@msk.com>>, "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] WP2 Issues from last night's call Malcolm, Thank you for this. I think it is a leap forward. I appreciate the effort and the spirit in which it is offered I still have to take more than a moment with it, but I think we are moving in the right direction, at least as regards our concerns. I still have an issue with the phrase "service that uses the Internet's unique identifiers." I've looked at this phrase a hundred times, and I would not have come up with the idea that it is limited to hardware (which are things, not services...). I think I'm far from alone in that. Also, the way you look at the clause "using the Internet's unique identifiers" is also not one that I would have taken away from this language. Registries and registrars clearly are services that use the Internet's unique identifiers; so does every other service business that uses the internet. Maybe as an IXP this has the meaning you think it has. But we need language that is agnostic of such distinctions, especially in a corporate bylaw. I spend much of my day looking at language at the intersection of law and technology, so I should be a good audience for something like this. As such I think the "misreading" is inherent in the language and not in the reader. To capture the meaning you attribute to the phrase in question, I would suggest the following: "[microprocessor controlled] technologies that use the Internet's unique identifiers to access the Internet" In this way, we have more explicitly limited the "service" as you suggest, and also limited the "use" as you suggest. And we avoid the ambiguity of the word "services," which clearly means very different things to different people. I look forward to your thoughts and those of others persevering on this thread. Greg On Wed, Nov 4, 2015 at 5:29 PM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 04/11/2015 22:06, Greg Shatan wrote:
Becky and all,
I have attached a revision to the proposed Bylaw under discussion, taking the comments from various quarters into account and trying to balance various concerns.
Greg
Thank you Greg. I think "strictly" should remain; the intent is indeed to ensure that ICANN remains within the Mission, and who is to say what kind of mission creep is "harmless". Your text also helpfully points out the unhelpfully vague nature of the phrase "as reasonably appropriate" in the first sentence. Let's delete it. I can agree with the inclusion of "negotiate and enter into", provided that this is also within the Mission. Attached is my suggestion for how we incorporate that phrase. The attached text is much simpler and more clear than anything we have had so far. If it is used, I think you will agree that there can be no suggestion nor any reasonable fear that ICANN's legitimate contracting authority is being brought into question. Can we settle on this? Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/<https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NYdcU7h7Yqe0Ei3DaPlgBGmq30kwdQEwySnogN1V-HQ&s=f_sjwRhW76BY1TN4m5cdxATV_IO0pZ5QWOiyQKMrYeI&e=> 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
Becky, I was thinking along similar lines with regard to a reference to the Consensus and Temporary Policies Specification. For better or worse, that leaves the Bylaw subject to future changes in the Specification rather than "baking" the current language into the Bylaw (and that really might be better). I know that these are functionally instructions to our counsel, rather than fully-baked Bylaws. Unfortunately, we have all gotten into the habit of drafting these as if they were Bylaws, rather than providing more "plain English" functional specifications for what we're trying to accomplish. The end result is more of a not-fully-baked Bylaw out of which our excellent counsel will need to discern our instructions. I think that one word is at the root of much of our difficulty -- "regulate." What is "regulation"? Which things that ICANN does can be called "regulation" and which ones are definitely not "regulation." One could say that ICANN, as a non-state actor, can never regulate, and that even using the word in relation to ICANN is wrong. One could say that ICANN does all sorts of things that qualify as regulation. One could say that ICANN is an industry "self-regulator." The problem is bigger or smaller, depending on the breadth of things that ICANN is prohibited from "regulating," but the problem never goes away. Another exchange in this thread shows massively differing ideas of the breadth of the term "services that use the Internet's unique identifiers." Maybe it's a good thing that the word "regulate" is so ambiguous in this context -- it will give us years of pleasure that were once reserved to parsing the difference between "policy" and "implementation." The one thing it won't give us is clarity. Greg On Wed, Nov 4, 2015 at 4:56 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Maybe we should include a reference to the Consensus and Temporary Policies Specification. Remember, this is not Bylaws language, rather it is instruction to drafting lawyers.
J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer
From: <Metalitz>, Steven Metalitz <met@msk.com> Date: Wednesday, November 4, 2015 at 4:36 PM To: Becky Burr <becky.burr@neustar.biz>, "Silver, Bradley" < Bradley.Silver@timewarner.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg <alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>
Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call
The argument is serious because the proposal is to amend the Mission to exclude “regulation of services that use unique identifiers.” This brings me back to the question whether domain name registration is such a service, and then Bradley’s question whether registrar accreditation is a regulation of that service. There certainly seems to be a serious argument that the answer to each question is “yes,” and if so, then this change to ICANN’s mission would bring into serious question ICANN’s authority to continue registrar accreditation --- without regard to the fact that, under a Mission statement that always lacked the ban on “regulation of services,” ICANN has “always accredited.”
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>] *Sent:* Wednesday, November 04, 2015 4:26 PM *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
This argument doesn’t make a lot of sense to me. ICANN has always accredited – both registries and registrars. Is there a serious argument to be had that this is outside the Mission?
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Silver>, Bradley <Bradley.Silver@timewarner.com> *Date: *Wednesday, November 4, 2015 at 4:20 PM *To: *Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Thank you for pointing that out, Becky. Do you think it’s clear that the role of “coordinator” of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet’s unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of “regulate” seems to clearly cover (and therefore prohibit) the activity of accreditation – even when read alongside the earlier reference to ICANN’s function as “coordinator”. Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to “regulation”- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination.
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>] *Sent:* Wednesday, November 04, 2015 3:46 PM *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
Taking off Andrew and the IAB folks as this is not their issue
W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples
Se
S
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Silver>, Bradley <Bradley.Silver@timewarner.com> *Date: *Wednesday, November 4, 2015 at 12:02 PM *To: *Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>, Andrew Sullivan < ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they?
*Bradley Silver Chief Intellectual PropertyCounsel |Time Warner Inc. *
One Time Warner Center New York, NY 10019-8016 *|* P: 212 484 8869 *|* F: 212 658 9293
[image: cid:image004.png@01D11648.738D46F0]
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Wednesday, November 04, 2015 11:33 AM *To:* Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific *examples (without limitation)*, including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION
? *Consensus Policies.*
1.1. "*Consensus Policies*" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein.
1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following:
1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS");
1.2.2. functional and performance specifications for the provision of Registrar Services;
1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry;
1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or
1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated.
1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation:
1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration);
1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars;
1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration);
1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers;
1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and
1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names.
1.4. In addition to the other limitations on Consensus Policies, they shall not:
1.4.1. prescribe or limit the price of Registrar Services;
1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies;
1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or
1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner.
? *Temporary Policies.* Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "*Board*") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("*Temporary Policies*").
2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws.
2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders.
2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy.
? *Notice and Conflicts.* Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification.
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Metalitz>, Steven Metalitz <met@msk.com> *Date: *Wednesday, November 4, 2015 at 11:03 AM *To: *'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Becky Burr <becky.burr@neustar.biz>, Accountability Community <accountability-cross-community@icann.org>, Andrew Sullivan <ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”?
Steve Metalitz
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Malcolm Hutty *Sent:* Wednesday, November 04, 2015 10:59 AM *To:* Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan,
If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation.
Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide."
So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion.
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&...>
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Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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On 04/11/2015 22:58, Greg Shatan wrote:
Becky,
I was thinking along similar lines with regard to a reference to the Consensus and Temporary Policies Specification. For better or worse, that leaves the Bylaw subject to future changes in the Specification rather than "baking" the current language into the Bylaw (and that really might be better).
Yes, that's my worry too. As I understand it, Specification 1 only appears in some contracts, not all past ones. And perhaps in the next round, it mght be changed, or not appear at all. It really isn't possible to bake a moving target like that into a Fundamental Bylaw. Maybe we could bake the *text* of Specification 1 into the Mission. But that's quite a lot of text.
I think that one word is at the root of much of our difficulty -- "regulate." What is "regulation"?
See my e-mail of an hour or so ago: it is simply a misreading to say the distinction is between co-ordinate and regulate. The distinction that appears in the text is between regulation "of the services that use the unique identifiers, or the content they carry or provide" and anything that is not regulation of those things. On the subject of "services", I attach yet another suggestion. I don't like it much - it seems to me cumbersome and inelegant compared to my previous effort - but if it resolves your concern, and Steve Metalitz's, about the meaning of the word "services", perhaps that's a price we need to pay. -- 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
Becky, I think the question is not whether accreditation is outside ICANN's Mission. The question is whether the proposed revisions have the [unintended] effect of making accreditation outside ICANN's Mission, because it now prohibits "regulation" of "services that use the Internet's unique identifiers". A related question is whether this would prohibit the accreditation of privacy/proxy service providers. Greg On Wed, Nov 4, 2015 at 4:25 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
This argument doesn’t make a lot of sense to me. ICANN has always accredited – both registries and registrars. Is there a serious argument to be had that this is outside the Mission?
J. Beckwith Burr Deputy General Counsel & Chief Privacy Officer
From: <Silver>, Bradley <Bradley.Silver@timewarner.com> Date: Wednesday, November 4, 2015 at 4:20 PM To: Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call
Thank you for pointing that out, Becky. Do you think it’s clear that the role of “coordinator” of the allocation and assignment of names in the root zone of the DNS, unequivocally covers the activity of accreditation of services that use the internet’s unique identifiers? Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate). The plain meaning of “regulate” seems to clearly cover (and therefore prohibit) the activity of accreditation – even when read alongside the earlier reference to ICANN’s function as “coordinator”. Some might argue that ICANN can and should fulfill its mission as coordinator without engaging in activities that amount to “regulation”- including accreditation, but possibly other oversight activities that could be understood as exceeding its powers of coordination.
*From:* Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>] *Sent:* Wednesday, November 04, 2015 3:46 PM *To:* Silver, Bradley; Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
Taking off Andrew and the IAB folks as this is not their issue
W As part of this process we have captured and imported the essence of the "picket fence” - the “what” (as opposed to the “how”) of Consensus Policy (Section 1.2 of the Consensus and Temporary Policies spec) into ICANN's Mission statement for names (ICANN’s Mission for names covers issues for which uniform or coordinated resolution is reasonably necessary to facilitate openness, interoperability, resilience, security and/or stability of the DNS). That means that issues that fall into the so-called “picket fence” are within ICANN’s Mission. That has been functionally true via the registry and registrar agreements since the beginning of ICANN time. We have just made this a bylaw fact. Section 1.3 of the Spec gives examples
Se
S
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Silver>, Bradley <Bradley.Silver@timewarner.com> *Date: *Wednesday, November 4, 2015 at 12:02 PM *To: *Becky Burr <becky.burr@neustar.biz>, Steven Metalitz <met@msk.com>, 'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Accountability Community < accountability-cross-community@icann.org>, Andrew Sullivan < ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Becky and all – I’m new to this thread but have been following this issue for some time. I’m still confused as to how Spec 1 clarifies the “regulation” language. If spec 1 says ICANN can do something by way of consensus policy making, does that trump what the bylaws say ICANN can do? Bylaws trump, don’t they?
*Bradley Silver Chief Intellectual PropertyCounsel |**Time Warner Inc. *
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*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Wednesday, November 04, 2015 11:33 AM *To:* Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA. Note that Section 1.2 outlines the topics that are fair game for consensus policies, which includes “resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names) Section 1.3 gives specific *examples (without limitation)*, including "reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration)" CONSENSUS POLICIES AND TEMPORARY POLICIES SPECIFICATION
? *Consensus Policies.*
1.1. "*Consensus Policies*" are those policies established (1) pursuant to the procedure set forth inICANN's Bylaws and due process, and (2) covering those topics listed in Section 1.2 of this document. The Consensus Policy development process and procedure set forth in ICANN's Bylaws may be revised from time to time in accordance with the process set forth therein.
1.2. Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including registrars. Consensus Policies shall relate to one or more of the following:
1.2.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, security and/or stability of the Internet, Registrar Services, Registry Services, or the Domain Name System ("DNS");
1.2.2. functional and performance specifications for the provision of Registrar Services;
1.2.3. registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry;
1.2.4. resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names); or
1.2.5. restrictions on cross-ownership of registry operators and registrars or Resellers and regulations and restrictions with respect to registrar and registry operations and the use of registry and registrar data in the event that a registry operator and a registrar or Reseller are affiliated.
1.3. Such categories of issues referred to in Section 1.2 shall include, without limitation:
1.3.1. principles for allocation of registered names in a TLD (e.g., first-come/first-served, timely renewal, holding period after expiration);
1.3.2. prohibitions on warehousing of or speculation in domain names by registries or registrars;
1.3.3. reservation of registered names in a TLD that may not be registered initially or that may not be renewed due to reasons reasonably related to (i) avoidance of confusion among or misleading of users, (ii) intellectual property, or (iii) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration);
1.3.4. maintenance of and access to accurate and up-to-date information concerning Registered Names and name servers;
1.3.5. procedures to avoid disruptions of domain name registrations due to suspension or termination of operations by a registry operator or a registrar, including procedures for allocation of responsibility among continuing registrars of the Registered Names sponsored in aTLD by a registrar losing accreditation; and
1.3.6. the transfer of registration data upon a change in registrar sponsoring one or more Registered Names.
1.4. In addition to the other limitations on Consensus Policies, they shall not:
1.4.1. prescribe or limit the price of Registrar Services;
1.4.2. modify the limitations on Temporary Policies (defined below) or Consensus Policies;
1.4.3. modify the provisions in the Registrar Accreditation Agreement regarding terms or conditions for the renewal, termination or amendment of the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or
1.4.4. modify ICANN's obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and to not single out Registrar for disparate treatment unless justified by substantial and reasonable cause, and exercise its responsibilities in an open and transparent manner.
? *Temporary Policies.* Registrar shall comply with and implement all specifications or policies established by the ICANN Board of Directors (the "*Board*") on a temporary basis, if adopted by the Board by a vote of at least two-thirds of its members, so long as the Board reasonably determines that such modifications or amendments are justified and that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the stability or security of Registrar Services, Registry Services or the DNS or the Internet ("*Temporary Policies*").
2.1. Such proposed specification or policy shall be as narrowly tailored as feasible to achieve those objectives. In establishing any Temporary Policy, the Board shall state the period of time for which the Temporary Policy is adopted and shall immediately implement the Consensus Policy development process set forth in ICANN's Bylaws.
2.1.1. ICANN shall also issue an advisory statement containing a detailed explanation of its reasons for adopting the Temporary Policy and why the Board believes such Temporary Policy should receive the consensus support of Internet stakeholders.
2.1.2. If the period of time for which the Temporary Policy is adopted exceeds 90 days, the Board shall reaffirm its temporary adoption every 90 days for a total period not to exceed one year, in order to maintain such Temporary Policy in effect until such time as it becomes aConsensus Policy. If the one year period expires or, if during such one year period, the Temporary Policy does not become a Consensus Policy and is not reaffirmed by the Board, Registrar shall no longer be required to comply with or implement such Temporary Policy.
? *Notice and Conflicts.* Registrar shall be afforded a reasonable period of time following notice of the establishment of a Consensus Policy or Temporary Policy in which to comply with such policy or specification, taking into account any urgency involved. In the event of a conflict between Registrar Services and Consensus Policies or any Temporary Policy, the Consensus Polices or Temporary Policy shall control, but only with respect to subject matter in conflict. For the avoidance of doubt,Consensus Policies that meet the requirements of this Specification may supplement or supersede provisions of the agreements between Registrar and ICANN, but only to the extent that suchConsensus Policies relate to the matters set forth in Section 1.2 and 1.3 of this Specification.
J. Beckwith Burr
Deputy General Counsel & Chief Privacy Officer
*From: *<Metalitz>, Steven Metalitz <met@msk.com> *Date: *Wednesday, November 4, 2015 at 11:03 AM *To: *'Malcolm Hutty' <malcolm@linx.net>, Alan Greenberg < alan.greenberg@mcgill.ca>, Becky Burr <becky.burr@neustar.biz>, Accountability Community <accountability-cross-community@icann.org>, Andrew Sullivan <ajs@anvilwalrusden.com>, "iab@iab.org" <iab@iab.org> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”?
Steve Metalitz
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Malcolm Hutty *Sent:* Wednesday, November 04, 2015 10:59 AM *To:* Alan Greenberg; Burr, Becky; Accountability Community; Andrew Sullivan; iab@iab.org *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
On 04/11/2015 14:17, Alan Greenberg wrote:
In the regulatory section, I would still like to see language that explicitly says that the unique identifiers themselves are deemed to not be "content".
Alan,
If you read the clause carefully, you will see that it does not say that ICANN cannot regulate Internet content; that's just a loose paraphrasing some people have been using in conversation.
Instead, it says that ICANN "shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide."
So the target of that exclusion is not "content" but "services" and "the content that such services carry or provide". This neatly avoids the question of whether domain names are content, because even if they are, they are still outside the reach of that exclusion.
Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__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
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On 04/11/2015 21:20, Silver, Bradley wrote:
Even with the added language covering enforcement of contracts, I think there is significant potential for confusion about how to reconcile what ICANN is empowered to do on the one hand (coordinate), but forbidden from doing on the other (regulate)
And *that's* the basic misreading that lies at the heart of all of this line of objections. This clause absolutely does NOT prohibiting ICANN from "regulating". The distinction isn't between ICANN co-ordinating (OK) and regulating (not OK). The text simply doesn't say that. What the text says is that ICANN cannot regulate CERTAIN PARTICULAR THINGS. The ONLY thing this clause explicitly prohibits, and it's incredibly clear and explicit about it, is i) the services that use the unique identifiers (which are things like web servers, mail servers, instant messaging platforms, etc etc); and ii) the content that such services carry or provide (such as, what you see on a particular web page). This doesn't prevent regulation of the DNS. It doesn't even cover regulation of registrar businesses, qua registrar businesses. It only covers the services using the DNS, IP addresses etc. I think at this time it's useful to reply to Steve Metalitz too
Malcolm, can you explain how domain name registration is not a “service that uses the Internet’s unique identifiers”?
Steve Metalitz
Domain name registration doesn't use the DNS. Domain name registration is something you do in order to be able to use a domain. It is entirely antecedent to such use, and so clear outside the coverage of the clause. "Services that use the Internet's unique identifiers" are things like web servers, mail servers and Internet-connected coffee-pots. Domain name registration is, at best, a service that *enables* the use of the Internet's unique identifiers, and even then, you're using the term "service" in an entirely different sense. Saying that domain name registration is a service that uses the unique identifiers is like the sun is a service that uses light. It doesn't. It makes light available. To say that "oh well somehow light is involved in what's going on" or "well, domain name registration is a service, and domains names are covered here, so this must be the same thing" is, quite frankly, to collect the written words without any regard for the way they've been strung together. -- 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
participants (7)
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Andrew Sullivan -
Burr, Becky -
Eric Brunner-Williams -
Greg Shatan -
Malcolm Hutty -
Metalitz, Steven -
Silver, Bradley