Milton Maybe I haven't been clear enough about what I'm trying to say, but I think you're exaggerating our differences. You write:

MM Please retract your statement that we don't need a clear and explicit limitation on ICANN's mission.

I would never have suggested this, so there's nothing to retract. OF COURSE we need a clear and explicit limitation on ICANN's mission. That's not where we disagree. My position is: we already HAVE a clear and explicit limitation on ICANN's mission: it's in the Mission Statement, and in ICANN's obligation not to act outside the Mission Statement. You say:

MM: The whole point of this exercise is to make sure that ICANN doesn't use its leverage over domain name registration services to extend its regulation into everything else on the internet.

I have been taking that position for about 100 years, and I continue to agree with you on that, too - wholeheartedly. You say:

MM: All the definitions are intended to make the distinction between the services ICANN can regulate and those it can't. If the definitions or wording don't work, make them work, don't tell us we don't need the limitation.

The problem is how to capture the distinction between "the services ICANN can regulate and those it can't" in a way that doesn't do more harm than good. Again: I think the Mission Statement makes this distinction already. ICANN can regulate only those services where it can show that "uniform or coordinated resolution" of how those services operate is "reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," and that the "regulation" being applied has been "developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems." So I start from the position that we don't "need" to add this as an affirmative limitation, because it's already in there, and because saying the same thing using different words usually just leads to confusion. As I see things, we have: a requirement that ICANN act only in accordance with its Mission; a limiting statement that "Without limiting the foregoing absolute prohibition, ICANN shall not regulate the content carried or provided by services that use the Internet's unique identifiers, ." One thing that perhaps we could add would be something like: ". . . nor shall ICANN have the ability to negotiate, enter into, or enforce agreements with contracted parties other than in service of its Mission." Do you think that works ? David At 05:37 AM 11/12/2015, Mueller, Milton L wrote:

David

You perhaps more than anyone else in the world have emphasized how control of the root might allow someone to do just that. And yet, as we are engaged in a historic attempt to create a constitutional limitation on ICANN that would prevent that, and as the LEAs and IPR lawyers realized that and are trying to kill that attempt, you inexplicably come out on the wrong side at the most damaging possible time. PLEASE get on board with us and help us get this limitation in place.

I think you are getting hung up on the fact that registry and registrar services are services. Of course they are and that is what ICANN regulates. The whole point of this exercise is to make sure that ICANN doesn't use its leverage over domain name registration services to extend its regulation into everything else on the internet. All the definitions are intended to make the distinction between the services ICANN can regulate and those it can't. If the definitions or wording don't work, make them work, don't tell us we don't need the limitation.

I really can't say anything more on this, I am just hugely disappointed. Please retract your statement that we don't need a clear and explicit limitation on ICANN's mission.

...

-----Original Message----- From: David Post [mailto:david.g.post@gmail.com] Sent: Wednesday, November 11, 2015 6:08 PM To: Mueller, Milton L <milton@gatech.edu> Cc: 'Accountability Community' <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

At 04:42 PM 11/11/2015, Mueller, Milton L wrote:

...

Thank you David for clarifying your position, which is that you do NOT support deleting both statements and DO want to keep a clear affirmative restriction in place. You have proposed to modify the wording of the restriction in the following manner:

DP: "Without limiting the foregoing absolute prohibition, ICANN shall not regulate the content carried or provided by services that use the Internet's unique identifiers." Doesn't that do the job?

MM: Possibly. It depends on whether regulating content also means regulating the type or nature of the service provided. If content was interpreted broadly I could accept this formulation

Milton - I don't think we're that far apart in this, and I don't want to beat a dead horse - but just to clarify my own position.

But it's not entirely up to me, of course - and, obviously, many others feel strongly, with you and Paul, that some sort of "clear affirmative restriction" specifying what ICANN CANNOT do needs to be put in place. I'm saying I don't object to that, though it's not the direction I would go.

If there is going to be some affirmative restriction language,it needs to be clear and unambiguous - otherwise, it is likely to do more harm than good, in my opinion; because it will have to be somehow reconciled with the Mission statement, it has the potential to muddy up interpretation of the Mission statement itself.

My problem with the "regulation clause" language is primarily with the formulation that "ICANN shall not regulate services that use the Internet's unique identifiers," because it seems to me that, under a perfectly reasonable reading of that language, that is exactly what ICANN does do - it promulgates and enforces rules for registries and registrars, who provide "services that use the Internet's unique identifiers." I don't know how we would expect someone (the IRP) to understand what it is we're trying to get at, with that language, and it will just lead to all sorts of interpretive mischief.

Which leaves the prohibition against "regulating the content carried or provided by services that use the Internet's unique identifiers." You write:

...

MM: Possibly. It depends on whether regulating content also means regulating the type or nature of the service provided. If content was interpreted broadly I could accept this formulation

The problem, though, is that we have to decide to accept or reject the formulation before we know how it's going to be interpreted. I'm not sure I know how you would want to make "content" as broad as you would like it to be.

David

******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************