Dear Jorge, All, This was indeed discussed during the December 15 meeting. The transcript is attached and I paste below the excerpt of the concluding remarks : Conclusions (excerpt from transcript) So yes you definitely raised a very valid point. And I as I said when replying to (Malcolm) this is of course no easy task. So yes indeed I don’t think that we should be actually looking in a very detailed way. And that’s why I suggest once again to continue the discussion off-line and of course reach out to ICANN legal and then from there may be continue shaping the question for our council to actually have something to work on. So if we are agree then I think that the first it would be to actually reach out to ICANN legal to see whether there are if any is some PICs that might be considered as typical and of course considering all these side issues or condiments as you could say that Chris has added to the equation. So at this point I would like to ask for any other comments or questions on this issue. And if there are no further comments or questions then I would turn back to my co-chair Mathieu for the next agenda item. I am not aware of any new developments or inputs from Icann Legal since then. Thanks to Alice for doing the research. Best Mathieu -----Message d'origine----- De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Jorge.Cancio@bakom.admin.ch Envoyé : jeudi 7 janvier 2016 16:01 À : Becky.Burr@neustar.biz Cc : acct-staff@icann.org; accountability-cross-community@icann.org Objet : Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion Hi Becky that piece was more for the Co-Chairs to answer. Notwithstanding personal positions I recall a decision being taken, and as far as I remember it was to formulate the question in more specific terms after consulting with ICANN Legal. So I would very much appreciate any info on this from the Co-Chairs. regards Jorge Von meinem iPhone gesendet Am 07.01.2016 um 15:56 schrieb Burr, Becky < <mailto:Becky.Burr@neustar.biz%3cmailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>: Jorge, I personally have been clear and consistent in my view that we were not asking the lawyers a question that can lead to a useful legal opinion. I believe that Holly concurred in my view that we would spend a lot of money and learn that the answer depends on the facts in any specific situation, none of which can be predicted in advance. I know that you and others continue to believe that there is some value in this, but as someone who has been on the receiving end of questions like that, I think would be a tremendous waste of ICANN resources. That said, I’m not the decision-maker here, just offering an opinion. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz< <http://www.neustar.biz> http://www.neustar.biz> From: "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Thursday, January 7, 2016 at 3:47 AM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-comm unity@icann.org>> Cc: "acct-staff@icann.org<mailto:acct-staff@icann.org>" <acct-staff@icann.org<mailto:acct-staff@icann.org>> Subject: AW: Deck for Meeting #75 Mission Statement discussion Dear Becky, dear Co-Chairs and dear all, For info: this is the full text of the GAC consensus input of December 21st on recommendation 5: Changing aspects of ICANN’s Mission. Commitments and Core Values (RECOMMENDATION 5) The GAC notes that legal advice is being sought by the CCWG to clarify the practical effect of this Recommendation, and believes this is appropriate. The GAC expects that any changes will not reduce the current role of the GAC in providing advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN’s policies and various laws and international agreements or where they may affect public policy issues (as provided in the current ByLaws). This includes issues such as consumer protection, the respect for fundamental rights and freedoms and law enforcement. The GAC further expects that changes to ICANN’s mission and core values should not constrain the Board from accepting and implementing GAC advice. In addition, ICANN’s ability to enforce contractual obligations and act upon the public policy advice of the GAC should not be inadvertently impacted. == And: what happened with the question to the lawyers which we decided to formulate to the lawyers on this very issue last December? Could you please inform on the status of this question? Regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cro ss-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Mittwoch, 6. Januar 2016 20:03 An: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-comm unity@icann.org>> Cc: ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>> Betreff: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion Wichtigkeit: Hoch Is attached in DRAFT FORM. Anything missing or wrong should be attributed to incompetence rather than conspiracy. I am still working on questions in 1 section. I will also shortly resend a variety of previously circulated resource documents. J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz< <http://www.neustar.biz> http://www.neustar.biz> _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community

There are some PICs that are incorporated into every new gTLD Agreement as Spec 11 (pasted below). Is this what you want a legal opinion on? And the opinion would be what? Whether these obligations are consistent with ICANN¹s Mission? Whether they are effectively grandfathered? (Of course, the answer to that depends on the scope of the grandfathering.) I think (since PICs are not the product of bottom up consensus policy development), the question must be whether these obligations are ³in service of ICANN¹s Mission." SPECIFICATION 11 PUBLIC INTEREST COMMITMENTS 1. Registry Operator will use only ICANN accredited registrars that are party to the Registrar Accreditation Agreement approved by the ICANN Board of Directors on 27 June 2013 in registering domain names. A list of such registrars shall be maintained by ICANN on ICANN¹s website. 2. Registry Operator will operate the registry for the TLD in compliance with all commitments, statements of intent and business plans stated in the following sections of Registry Operator¹s application to ICANN for the TLD, which commitments, statements of intent and business plans are hereby incorporated by reference into this Agreement. Registry Operator¹s obligations pursuant to this paragraph shall be enforceable by ICANN and through the Public Interest Commitment Dispute Resolution Process established by ICANN (posted at http://www.icann.org/en/resources/registries/picdrp),which may be revised in immaterial respects by ICANN from time to time (the ³PICDRP²). Registry Operator shall comply with the PICDRP. Registry Operator agrees to implement and adhere to any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination [Registry Operator to insert specific application sections here, if applicable] 3.Registry Operator agrees to perform the following specific public interest commitments, which commitments shall be enforceable by ICANN and through the PICDRP. Registry Operator shall comply with the PICDRP. Registry Operator agrees to implement and adhere to any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination. a. Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name. b. Registry Operator will periodically conduct a technical analysis to assess whether domains in the TLD are being used to perpetrate security threats, such as pharming, phishing, malware, and botnets. Registry Operator will maintain statistical reports on the number of security threats identified and the actions taken as a result of the periodic security checks. Registry Operator will maintain these reports for the term of the Agreement unless a shorter period is required by law or approved by ICANN, and will provide them to ICANN upon request. c. Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies. d. Registry Operator of a ³Generic String² TLD may not impose eligibility criteria for registering names in the TLD that limit registrations exclusively to a single person or entity and/or that person¹s or entity¹s ³Affiliates² (as defined in Section 2.9(c) of the Registry Agreement). ³Generic String² means a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz> On 1/7/16, 10:47 AM, "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> wrote:

Dear Mathieu

that is consistent with my recollection. Was there any outreach to ICANN Legal? And, will there be a follow-up?

@Milton: I just informed on the full GAC input on this issue, which I feel should be read in its entirety.

@Kavouss: I guess Mathieu's email answers your question

regards

Jorge

Von meinem iPhone gesendet

Am 07.01.2016 um 16:37 schrieb Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>:

Dear Jorge, All,

This was indeed discussed during the December 15 meeting. The transcript is attached and I paste below the excerpt of the concluding remarks :

Conclusions (excerpt from transcript)

So yes you definitely raised a very valid point. And I as I said when replying to (Malcolm) this is of course no easy task. So yes indeed I don¹t think that we should be actually looking in a very detailed way.

And that¹s why I suggest once again to continue the discussion off-line and of course reach out to ICANN legal and then from there may be continue shaping the question for our council to actually have something to work on.

So if we are agree then I think that the first it would be to actually reach out to ICANN legal to see whether there are if any is some PICs that might be considered as typical and of course considering all these side issues or condiments as you could say that Chris has added to the equation.

So at this point I would like to ask for any other comments or questions on this issue. And if there are no further comments or questions then I would turn back to my co-chair Mathieu for the next agenda item.

I am not aware of any new developments or inputs from Icann Legal since then. Thanks to Alice for doing the research.

Best

Mathieu

-----Message d'origine----- De : accountability-cross-community-bounces@icann.org<mailto:accountability-cro ss-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] De la part de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Envoyé : jeudi 7 janvier 2016 16:01 À : Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> Cc : acct-staff@icann.org<mailto:acct-staff@icann.org>; accountability-cross-community@icann.org<mailto:accountability-cross-commu nity@icann.org> Objet : Re: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Hi Becky

that piece was more for the Co-Chairs to answer.

Notwithstanding personal positions I recall a decision being taken, and as far as I remember it was to formulate the question in more specific terms after consulting with ICANN Legal.

So I would very much appreciate any info on this from the Co-Chairs.

regards

Jorge

Von meinem iPhone gesendet

Am 07.01.2016 um 15:56 schrieb Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz<mailto:Becky.Burr@ne ustar.biz%3cmailto:Becky.Burr@neustar.biz>>>:

Jorge,

I personally have been clear and consistent in my view that we were not asking the lawyers a question that can lead to a useful legal opinion. I believe that Holly concurred in my view that we would spend a lot of money and learn that the answer depends on the facts in any specific situation, none of which can be predicted in advance. I know that you and others continue to believe that there is some value in this, but as someone who has been on the receiving end of questions like that, I think would be a tremendous waste of ICANN resources.

That said, I¹m not the decision-maker here, just offering an opinion.

Becky

J. Beckwith Burr

Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington D.C. 20006

Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

From: "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jo rge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch><mailto:Jo rge.Cancio@bakom.admin.ch>>

Date: Thursday, January 7, 2016 at 3:47 AM

To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz><mailto:becky.burr@n eustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-comm unity@icann.org><mailto:accountability-cross-community@icann.org>>

Cc: "acct-staff@icann.org<mailto:acct-staff@icann.org><mailto:acct-staff@icann .org>" <acct-staff@icann.org<mailto:acct-staff@icann.org><mailto:acct-staff@icann .org>>

Subject: AW: Deck for Meeting #75 Mission Statement discussion

Dear Becky, dear Co-Chairs and dear all,

For info: this is the full text of the GAC consensus input of December 21st on recommendation 5:

Changing aspects of ICANN¹s Mission. Commitments and Core Values (RECOMMENDATION 5)

The GAC notes that legal advice is being sought by the CCWG to clarify the practical effect of this Recommendation, and believes this is appropriate.

The GAC expects that any changes will not reduce the current role of the GAC in providing advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN¹s policies and various laws and international agreements or where they may affect public policy issues (as provided in the current ByLaws). This includes issues such as consumer protection, the respect for fundamental rights and freedoms and law enforcement.

The GAC further expects that changes to ICANN¹s mission and core values should not constrain the Board from accepting and implementing GAC advice. In addition, ICANN¹s ability to enforce contractual obligations and act upon the public policy advice of the GAC should not be inadvertently impacted.

==

And: what happened with the question to the lawyers which we decided to formulate to the lawyers on this very issue last December? Could you please inform on the status of this question?

Regards

Jorge

Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cro ss-community-bounces@icann.org><mailto:accountability-cross-community-boun ces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Burr, Becky

Gesendet: Mittwoch, 6. Januar 2016 20:03

An: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-comm unity@icann.org><mailto:accountability-cross-community@icann.org>>

Cc: ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org><mailto:acct-staff@icann .org>>

Betreff: [CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Wichtigkeit: Hoch

Is attached in DRAFT FORM. Anything missing or wrong should be attributed to incompetence rather than conspiracy. I am still working on questions in 1 section. I will also shortly resend a variety of previously circulated resource documents.

J. Beckwith Burr

Neustar, Inc./Deputy General Counsel & Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington D.C. 20006

Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz<http://www.neustar.biz>

_______________________________________________

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<Transcript_CCWG ACCT_15 December (1).doc>