Implementation flaw in Mission section
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section. The Report approved by the Chartering Organisations says: "* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134) The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c)) Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means. Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too. This is a clear and objective discrepancy. Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation. This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy. The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations. Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report. I therefore propose we transmit the following request to the implementation team. "Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose." I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion. 1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym. Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." with the implementation team's draft bylaw "ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." and my alternative suggestion for this Bylaw "ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide". That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate". Kind Regards, 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
Aha This is among those risks that the process if drafting produced There nay be many others Kavouss Sent from my iPhone
On 8 Apr 2016, at 13:28, Malcolm Hutty <malcolm@linx.net> wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Malcolm, all: I noticed this discrepancy too. By singling out the RA and RAA I agree that the drafting goes beyond what the instructions intended. While I also understand the lawyerly inclination to avoid “regulate”, I do not agree that your suggestion of “constrain” is a suitable alternative – that seems much weaker, and I think the lawyers got it right by using the word “impose terms and conditions”. After all, that’s what regulators do, and it encapsulates the concept of constraint. Rather: · ICANN shall not impose terms and conditions on services that use the Internet’s unique identifiers or the content that such services carry or provide. I agree that this is a discrepancy which should be addressed. Bradley -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Friday, April 08, 2016 7:29 AM To: Accountability Cross Community Subject: [CCWG-ACCT] Implementation flaw in Mission section I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section. The Report approved by the Chartering Organisations says: "* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134) The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c)) Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means. Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too. This is a clear and objective discrepancy. Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation. This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy. The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations. Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report. I therefore propose we transmit the following request to the implementation team. "Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose." I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion. 1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym. Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." with the implementation team's draft bylaw "ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." and my alternative suggestion for this Bylaw "ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide". That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate". Kind Regards, 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. =================================================================
Very much so. This Mission limitation was the very core of what the accountability effort was aimed at … this needs to be fixed Paul Paul Rosenzweig <mailto:Paul.rosenzweig@redbranchconsulting.com> Paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> My PGP Key From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Friday, April 8, 2016 1:31 PM To: Malcolm Hutty <malcolm@linx.net>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section Malcolm, all: I noticed this discrepancy too. By singling out the RA and RAA I agree that the drafting goes beyond what the instructions intended. While I also understand the lawyerly inclination to avoid “regulate”, I do not agree that your suggestion of “constrain” is a suitable alternative – that seems much weaker, and I think the lawyers got it right by using the word “impose terms and conditions”. After all, that’s what regulators do, and it encapsulates the concept of constraint. Rather: * ICANN shall not impose terms and conditions on services that use the Internet’s unique identifiers or the content that such services carry or provide. I agree that this is a discrepancy which should be addressed. Bradley -----Original Message----- 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: Friday, April 08, 2016 7:29 AM To: Accountability Cross Community Subject: [CCWG-ACCT] Implementation flaw in Mission section I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section. The Report approved by the Chartering Organisations says: "* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134) The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c)) Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means. Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too. This is a clear and objective discrepancy. Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation. This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy. The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations. Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report. I therefore propose we transmit the following request to the implementation team. "Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose." I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion. 1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym. Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." with the implementation team's draft bylaw "ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." and my alternative suggestion for this Bylaw "ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide". That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate". Kind Regards, 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/> http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list <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 ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at <mailto:ITServices@timewarner.com> ITServices@timewarner.com ================================================================= ================================================================= 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. =================================================================
On 08/04/2016 18:30, Silver, Bradley wrote:
Malcolm, all:
I noticed this discrepancy too. By singling out the RA and RAA I agree that the drafting goes beyond what the instructions intended.
[...]
I agree that this is a discrepancy which should be addressed.
Bradley, Thank you for support for the principle of improving this. In regard to your comment on my alternative language, and counter-suggestion:
that seems much weaker, and I think the lawyers got it right by using the word “impose terms and conditions”. After all, that’s what regulators do, and it encapsulates the concept of constraint. Rather:
· ICANN shall not impose terms and conditions on services that use the Internet’s unique identifiers or the content that such services carry or provide.
While that's certainly an improvement, I think that "impose terms and conditions" still reduces the scope in a way not found in the original report. It isn't ICANN's job to try to regulate content or businesses, whether through the T&Cs or any other way, and that was what was expressed in the CCWG Report the Chartering Organisations approved. Perhaps we should just leave it in the hands of the lawyers to come up with suitably generalised text that matches the Report. Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Friday, April 08, 2016 7:29 AM To: Accountability Cross Community Subject: [CCWG-ACCT] Implementation flaw in Mission section
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows:
"* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be
imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine.
2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction.
3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report:
"Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
=================================================================
Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com <mailto:ITServices@timewarner.com>
=================================================================
================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. =================================================================
-- 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 with Malcolm's analysis of the situation and support modifying the new bylaws to make it clear that the prohibition on regulating content is a broader Mission limitation that would encompass any means, not just the RAA and RA. --MM
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Friday, April 8, 2016 7:29 AM To: Accountability Cross Community <accountability-cross- community@icann.org> Subject: [CCWG-ACCT] Implementation flaw in Mission section
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I agree that this is an important clarification that we need to make for the proposal to be implemented properly. Thanks, Robin
On Apr 8, 2016, at 11:31 AM, Mueller, Milton L <milton@gatech.edu> wrote:
I agree with Malcolm's analysis of the situation and support modifying the new bylaws to make it clear that the prohibition on regulating content is a broader Mission limitation that would encompass any means, not just the RAA and RA.
--MM
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Friday, April 8, 2016 7:29 AM To: Accountability Cross Community <accountability-cross- community@icann.org> Subject: [CCWG-ACCT] Implementation flaw in Mission section
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-1 CW On 08 Apr 2016, at 20:56, Robin Gross <robin@ipjustice.org> wrote:
I agree that this is an important clarification that we need to make for the proposal to be implemented properly.
Thanks, Robin
On Apr 8, 2016, at 11:31 AM, Mueller, Milton L <milton@gatech.edu> wrote:
I agree with Malcolm's analysis of the situation and support modifying the new bylaws to make it clear that the prohibition on regulating content is a broader Mission limitation that would encompass any means, not just the RAA and RA.
--MM
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Friday, April 8, 2016 7:29 AM To: Accountability Cross Community <accountability-cross- community@icann.org> Subject: [CCWG-ACCT] Implementation flaw in Mission section
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Malcolm: This, as I think you know, goes too far and is politically unsustainable. Who, then is to regulate offending or illegal content or services in TLDs with global scope? Who, then is to enforce commitments reached prior to delegation of the domain? Let's get real, CW On 08 Apr 2016, at 13:28, Malcolm Hutty <malcolm@linx.net> wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 08/04/2016 21:09, Christopher Wilkinson wrote:
Dear Malcolm:
This, as I think you know, goes too far and is politically unsustainable.
Who, then is to regulate offending or illegal content or services in TLDs with global scope? Who, then is to enforce commitments reached prior to delegation of the domain?
Dear Christopher, I think you know that this is properly a matter for governments, acting within their own jurisdiction according to national sovereignty, and that ICANN has no legitimacy to some supervening global authority in the regulation of Internet content or the businesses that use the Internet. Kind Regards, 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
I am not sure that this discussion even belongs in the CCWG ACCT. Can we perhaps move it to a later discussion? M
To: lists@christopherwilkinson.eu From: malcolm@linx.net Date: Fri, 8 Apr 2016 23:00:19 +0100 CC: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 08/04/2016 21:09, Christopher Wilkinson wrote:
Dear Malcolm:
This, as I think you know, goes too far and is politically unsustainable.
Who, then is to regulate offending or illegal content or services in TLDs with global scope? Who, then is to enforce commitments reached prior to delegation of the domain?
Dear Christopher,
I think you know that this is properly a matter for governments, acting within their own jurisdiction according to national sovereignty, and that ICANN has no legitimacy to some supervening global authority in the regulation of Internet content or the businesses that use the Internet.
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I agree that the current draft language on this point appears too narrow. However, Malcolm's proposed language is overbroad and goes beyond what was agreed to. I can understand the desire of the drafters to avoid using the term "regulate," since ICANN is not a regulatory body and is thus incapable of regulating as such. The trick is capturing the conceptual essence of the term without using it, and without substituting terms of substantially broader or narrower effect. The essence of regulation is prescribing or imposing rules and/or requirements. As such, I find Bradley's suggested language to fall much closer to carrying out the intent of the CCWG Report, and I support that language as well: ICANN shall not impose terms and conditions on services that use the Internet’s unique identifiers or the content that such services carry or provide. I do not support the new note to the drafters that Malcolm has proposed as a "request." I don't think this objectively frames the issue, and I don't think it is necessary to include a pontificatory paragraph with our suggested language. I suggest we scuttle this, rather than taking the time to negotiate an acceptable version. All we need to say is that we believe the draft bylaws didn't adequately capture this particular point and we propose the language above as a replacement. Greg [image: http://hilweb1/images/signature.jpg] *Gregory S. Shatan | Partner*McCARTER & ENGLISH, LLP 245 Park Avenue, 27th Floor | New York, New York 10167 T: 212-609-6873 F: 212-416-7613 gshatan @mccarter.com | www.mccarter.com BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC On Sat, Apr 9, 2016 at 3:47 PM, Marilyn Cade <marilynscade@hotmail.com> wrote:
I am not sure that this discussion even belongs in the CCWG ACCT.
Can we perhaps move it to a later discussion? M
To: lists@christopherwilkinson.eu From: malcolm@linx.net Date: Fri, 8 Apr 2016 23:00:19 +0100 CC: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 08/04/2016 21:09, Christopher Wilkinson wrote:
Dear Malcolm:
This, as I think you know, goes too far and is politically
unsustainable.
Who, then is to regulate offending or illegal content or services in
TLDs with global scope?
Who, then is to enforce commitments reached prior to delegation of the domain?
Dear Christopher,
I think you know that this is properly a matter for governments, acting within their own jurisdiction according to national sovereignty, and that ICANN has no legitimacy to some supervening global authority in the regulation of Internet content or the businesses that use the Internet.
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is. Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
OK, I have no problem with finding an substitute for the word "regulate".
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Reason noted.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content.
OK, so we seem to be in agreement.
But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
Technically true, but the belt and bracers was wanted, and for good reasons. We did discuss at length whether this belt-and-bracer was superfluous; this is hardly a provision that came about inadvertently. We came to a clear and considered conclusion that it was necessary, and that was the decision approved by Chartering Organisations. That decision shouldn't now be undermined by incomplete implementation. So I will take your message as acceptance of the discrepancy and need to fix it, and read the above paragraph as a "by-the-way", rather than as an attempt to argue that the draft Bylaw can remain as it is.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
I did offer one alternative construct (see my previous message, copied below); Greg and Bradley have criticised it. Bradley offered another, and I gave my own criticism of that. Perhaps it is best for us in CCWG to leave the implementation team to consider the feedback given and come back with a proposal, working to the objective of generalising this clause to match the generality of the Report. Malcolm.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG. -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is. Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com ================================================================= ================================================================= 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. =================================================================
On 11/04/2016 19:42, Silver, Bradley wrote:
Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be trying to do, and almost completely agreed on how to express it as well. You mention "what regulators do". Certainly in my experience they don't only rely on imposing terms and conditions, but use a variety of mechanisms to achieve their goals, from formal law to seeking to cajole corporate representatives and leadership. So I think that reasoning also supports a broader definition. But perhaps we should stick more closely to the verb "regulate" than the actor "regulator", to match the language of the report. When I type "define: regulate" into Google, the definition given reads (1) control or maintain the rate or speed of (a machine or process) so that it operates properly. (2) control or supervise (something, especially a company or business activity) by means of rules and regulations. (3) set (a clock or other apparatus) according to an external standard. The second seems to me entirely consistent with my understanding of the Report's provision. Other dictionaries will no doubt offer slightly different definition, and I assume the implementation team will look at a few. Anyway, this isn't easy, and we're fumbling for the right works, in the dark together, hand-in-hand. All the best, Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
What's wrong with the word "control" instead of "regulate"?
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 3:13 PM To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 11/04/2016 19:42, Silver, Bradley wrote:
Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be trying to do, and almost completely agreed on how to express it as well.
You mention "what regulators do". Certainly in my experience they don't only rely on imposing terms and conditions, but use a variety of mechanisms to achieve their goals, from formal law to seeking to cajole corporate representatives and leadership. So I think that reasoning also supports a broader definition.
But perhaps we should stick more closely to the verb "regulate" than the actor "regulator", to match the language of the report.
When I type "define: regulate" into Google, the definition given reads
(1) control or maintain the rate or speed of (a machine or process) so that it operates properly. (2) control or supervise (something, especially a company or business activity) by means of rules and regulations. (3) set (a clock or other apparatus) according to an external standard.
The second seems to me entirely consistent with my understanding of the Report's provision. Other dictionaries will no doubt offer slightly different definition, and I assume the implementation team will look at a few.
Anyway, this isn't easy, and we're fumbling for the right works, in the dark together, hand-in-hand.
All the best,
Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that
cannot
now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Good question Milton, I would like to know if that word works. HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory@sidley.com -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, April 11, 2016 3:59 PM To: Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section What's wrong with the word "control" instead of "regulate"?
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 3:13 PM To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 11/04/2016 19:42, Silver, Bradley wrote:
Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be trying to do, and almost completely agreed on how to express it as well.
You mention "what regulators do". Certainly in my experience they don't only rely on imposing terms and conditions, but use a variety of mechanisms to achieve their goals, from formal law to seeking to cajole corporate representatives and leadership. So I think that reasoning also supports a broader definition.
But perhaps we should stick more closely to the verb "regulate" than the actor "regulator", to match the language of the report.
When I type "define: regulate" into Google, the definition given reads
(1) control or maintain the rate or speed of (a machine or process) so that it operates properly. (2) control or supervise (something, especially a company or business activity) by means of rules and regulations. (3) set (a clock or other apparatus) according to an external standard.
The second seems to me entirely consistent with my understanding of the Report's provision. Other dictionaries will no doubt offer slightly different definition, and I assume the implementation team will look at a few.
Anyway, this isn't easy, and we're fumbling for the right works, in the dark together, hand-in-hand.
All the best,
Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that
cannot
now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
For whats its worth it would work for me also. -James On 11/04/2016, 10:22 p.m., "accountability-cross-community-bounces@icann.org on behalf of Gregory, Holly" <accountability-cross-community-bounces@icann.org on behalf of holly.gregory@sidley.com> wrote:
Good question Milton, I would like to know if that word works.
HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory@sidley.com -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, April 11, 2016 3:59 PM To: Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
What's wrong with the word "control" instead of "regulate"?
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 3:13 PM To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 11/04/2016 19:42, Silver, Bradley wrote:
Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be trying to do, and almost completely agreed on how to express it as well.
You mention "what regulators do". Certainly in my experience they don't only rely on imposing terms and conditions, but use a variety of mechanisms to achieve their goals, from formal law to seeking to cajole corporate representatives and leadership. So I think that reasoning also supports a broader definition.
But perhaps we should stick more closely to the verb "regulate" than the actor "regulator", to match the language of the report.
When I type "define: regulate" into Google, the definition given reads
(1) control or maintain the rate or speed of (a machine or process) so that it operates properly. (2) control or supervise (something, especially a company or business activity) by means of rules and regulations. (3) set (a clock or other apparatus) according to an external standard.
The second seems to me entirely consistent with my understanding of the Report's provision. Other dictionaries will no doubt offer slightly different definition, and I assume the implementation team will look at a few.
Anyway, this isn't easy, and we're fumbling for the right works, in the dark together, hand-in-hand.
All the best,
Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that
cannot
now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
**************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
The problem with that solution is that it does not begin from where the report left off. The CCWG was unable to reach agreement on what was meant by the verb "regulate" or what it meant for ICANN to be a "regulator". Rather, agreement was reached on ICANN not "imposing regulations" on services, and the content of such services. It is this concept of "imposing regulations" that needs translation. I see no reason to depart from "imposing", which has a clear meaning, and I am sure the lawyers can find a substitute for the term "regulations". I look forward to seeing what they come back with. -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of James Gannon Sent: Monday, April 11, 2016 5:45 PM To: Gregory, Holly; Mueller, Milton L; Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section For whats its worth it would work for me also. -James On 11/04/2016, 10:22 p.m., "accountability-cross-community-bounces@icann.org on behalf of Gregory, Holly" <accountability-cross-community-bounces@icann.org on behalf of holly.gregory@sidley.com> wrote:
Good question Milton, I would like to know if that word works.
HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory@sidley.com -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, April 11, 2016 3:59 PM To: Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
What's wrong with the word "control" instead of "regulate"?
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 3:13 PM To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 11/04/2016 19:42, Silver, Bradley wrote:
Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be trying to do, and almost completely agreed on how to express it as well.
You mention "what regulators do". Certainly in my experience they don't only rely on imposing terms and conditions, but use a variety of mechanisms to achieve their goals, from formal law to seeking to cajole corporate representatives and leadership. So I think that reasoning also supports a broader definition.
But perhaps we should stick more closely to the verb "regulate" than the actor "regulator", to match the language of the report.
When I type "define: regulate" into Google, the definition given reads
(1) control or maintain the rate or speed of (a machine or process) so that it operates properly. (2) control or supervise (something, especially a company or business activity) by means of rules and regulations. (3) set (a clock or other apparatus) according to an external standard.
The second seems to me entirely consistent with my understanding of the Report's provision. Other dictionaries will no doubt offer slightly different definition, and I assume the implementation team will look at a few.
Anyway, this isn't easy, and we're fumbling for the right works, in the dark together, hand-in-hand.
All the best,
Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that
cannot
now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
*********************************************************************** ***************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
*********************************************************************** ***************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com ================================================================= ================================================================= 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. =================================================================
I agree with Bradley. Would the following work? I haven't thought it through myself, but I throw it out there as a conceptual possibility. *ICANN shall not impose controls on services that use the Internet’s unique identifiers or the content that such services carry or provide.* Since nothing is ever simple, I will also note that I don't believe we came to agreement on what "services" means -- services (such as web services*) that run on e.g., computers and communicate over the Internet, or service businesses that use the internet. Greg ___ * From Wikipedia: A *Web service* is a service offered by an electronic device to another electronic device, communicating with each other via the World wide web <https://en.wikipedia.org/wiki/World_wide_web>. In a web service, web technology such as the HTTP <https://en.wikipedia.org/wiki/HTTP>, originally designed for human-to-machine communication, is utilized for machine-to-machine communication, more specifically for transferring machine readable file formats such as XML <https://en.wikipedia.org/wiki/XML> and JSON <https://en.wikipedia.org/wiki/JSON>. In practice, the web service typically provides an object-oriented <https://en.wikipedia.org/wiki/Object-oriented_database> web based interface to a database server, utilized for example by another web server, or by a mobile application <https://en.wikipedia.org/wiki/Mobile_application>, that provides a user interface to the end user. Another common application offered to the end user may be a mashup <https://en.wikipedia.org/wiki/Mashup_(web_application_hybrid)>, where a web server consumes several web services at different machines, and compiles the content into one user interface. The W3C <https://en.wikipedia.org/wiki/W3C> defines a Web service generally as: a software system designed to support interoperable <https://en.wikipedia.org/wiki/Interoperability> machine-to-machine interaction over a network <https://en.wikipedia.org/wiki/Computer_network>. [1] <https://en.wikipedia.org/wiki/Web_service#cite_note-W3WSG-1> [image: http://hilweb1/images/signature.jpg] *Gregory S. Shatan | Partner*McCARTER & ENGLISH, LLP 245 Park Avenue, 27th Floor | New York, New York 10167 T: 212-609-6873 F: 212-416-7613 gshatan @mccarter.com | www.mccarter.com BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC On Mon, Apr 11, 2016 at 6:04 PM, Silver, Bradley < Bradley.Silver@timewarner.com> wrote:
The problem with that solution is that it does not begin from where the report left off. The CCWG was unable to reach agreement on what was meant by the verb "regulate" or what it meant for ICANN to be a "regulator". Rather, agreement was reached on ICANN not "imposing regulations" on services, and the content of such services. It is this concept of "imposing regulations" that needs translation. I see no reason to depart from "imposing", which has a clear meaning, and I am sure the lawyers can find a substitute for the term "regulations". I look forward to seeing what they come back with.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of James Gannon Sent: Monday, April 11, 2016 5:45 PM To: Gregory, Holly; Mueller, Milton L; Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
For whats its worth it would work for me also.
-James
On 11/04/2016, 10:22 p.m., " accountability-cross-community-bounces@icann.org on behalf of Gregory, Holly" <accountability-cross-community-bounces@icann.org on behalf of holly.gregory@sidley.com> wrote:
Good question Milton, I would like to know if that word works.
HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory@sidley.com -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, April 11, 2016 3:59 PM To: Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
What's wrong with the word "control" instead of "regulate"?
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 3:13 PM To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 11/04/2016 19:42, Silver, Bradley wrote:
Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be trying to do, and almost completely agreed on how to express it as well.
You mention "what regulators do". Certainly in my experience they don't only rely on imposing terms and conditions, but use a variety of mechanisms to achieve their goals, from formal law to seeking to cajole corporate representatives and leadership. So I think that reasoning also supports a broader definition.
But perhaps we should stick more closely to the verb "regulate" than the actor "regulator", to match the language of the report.
When I type "define: regulate" into Google, the definition given reads
(1) control or maintain the rate or speed of (a machine or process) so that it operates properly. (2) control or supervise (something, especially a company or business activity) by means of rules and regulations. (3) set (a clock or other apparatus) according to an external standard.
The second seems to me entirely consistent with my understanding of the Report's provision. Other dictionaries will no doubt offer slightly different definition, and I assume the implementation team will look at a few.
Anyway, this isn't easy, and we're fumbling for the right works, in the dark together, hand-in-hand.
All the best,
Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that
cannot
now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
*********************************************************************** ***************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
*********************************************************************** ***************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
=================================================================
Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com
=================================================================
================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. =================================================================
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
The antitrust and competition law risks are going to be there regardless of specific word choice. It is arguable, incorrectly in my view, whether the current structure of ICANN, inclusive of NTIA ties, is compliant with article 101 of the TFEU and I'm sure somebody would argue some of ICANN's actions violate article 102 of the same Treaty ( for those who went to law school back when I did, these are the old articles 85 and 86 of the Treaty of Rome, transposed to the TFEU). None of this would be a slam dunk decision either way. There are many forms of competition law / antitrust statutes in many, sometimes overlapping, jurisdictions. ICANN is exposed to many of them. Hopefully our legal teams are looking not only at the Sherman Act but also at the Cartwright Act, California's antitrust statute that is similar, but not identical, to U.S. federal law. Limiting complete antitrust exposure worldwide would be difficult if not impossible. I look forward to hearing from Holly and Rosemary. I believe 'regulation' is a more accurate description of what we are after. To 'control' would at first impulse be even less acceptable on antitrust grounds ( preventing the control of markets by a cartel is pretty much what competition law is designed to stop) than regulate, as well as being less accurate. I question whether the problem is more the wording or what it is we want to do. We should get clarification on that point. I look forward to hearing from our lawyers in the hope they can fashion a remedy all are reasonably comfortable with for this quite interesting problem. Ed ---------------------------------------- From: "Greg Shatan" <gregshatanipc@gmail.com> Sent: Monday, April 11, 2016 11:48 PM To: "Silver, Bradley" <Bradley.Silver@timewarner.com> Cc: "Accountability Cross Community" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section I agree with Bradley. Would the following work? I haven't thought it through myself, but I throw it out there as a conceptual possibility. ICANN shall not impose controls on services that use the Internet's unique identifiers or the content that such services carry or provide. Since nothing is ever simple, I will also note that I don't believe we came to agreement on what "services" means -- services (such as web services*) that run on e.g., computers and communicate over the Internet, or service businesses that use the internet. Greg ___ * From Wikipedia: A Web service is a service offered by an electronic device to another electronic device, communicating with each other via the World wide web. In a web service, web technology such as the HTTP, originally designed for human-to-machine communication, is utilized for machine-to-machine communication, more specifically for transferring machine readable file formats such as XML and JSON. In practice, the web service typically provides an object-oriented web based interface to a database server, utilized for example by another web server, or by a mobile application, that provides a user interface to the end user. Another common application offered to the end user may be a mashup, where a web server consumes several web services at different machines, and compiles the content into one user interface. The W3C defines a Web service generally as: ? a software system designed to support interoperable machine-to-machine interaction over a network.[1] Gregory S. Shatan | Partner McCARTER & ENGLISH, LLP 245 Park Avenue, 27th Floor | New York, New York 10167 T: 212-609-6873 F: 212-416-7613 gshatan @mccarter.com | www.mccarter.com BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC On Mon, Apr 11, 2016 at 6:04 PM, Silver, Bradley <Bradley.Silver@timewarner.com> wrote: The problem with that solution is that it does not begin from where the report left off. The CCWG was unable to reach agreement on what was meant by the verb "regulate" or what it meant for ICANN to be a "regulator". Rather, agreement was reached on ICANN not "imposing regulations" on services, and the content of such services. It is this concept of "imposing regulations" that needs translation. I see no reason to depart from "imposing", which has a clear meaning, and I am sure the lawyers can find a substitute for the term "regulations". I look forward to seeing what they come back with. -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of James Gannon Sent: Monday, April 11, 2016 5:45 PM To: Gregory, Holly; Mueller, Milton L; Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section For whats its worth it would work for me also. -James On 11/04/2016, 10:22 p.m., "accountability-cross-community-bounces@icann.org on behalf of Gregory, Holly" <accountability-cross-community-bounces@icann.org on behalf of holly.gregory@sidley.com> wrote:
Good question Milton, I would like to know if that word works.
HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory@sidley.com -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, April 11, 2016 3:59 PM To: Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
What's wrong with the word "control" instead of "regulate"?
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 3:13 PM To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 11/04/2016 19:42, Silver, Bradley wrote:
Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be trying to do, and almost completely agreed on how to express it as well.
You mention "what regulators do". Certainly in my experience they don't only rely on imposing terms and conditions, but use a variety of mechanisms to achieve their goals, from formal law to seeking to cajole corporate representatives and leadership. So I think that reasoning also supports a broader definition.
But perhaps we should stick more closely to the verb "regulate" than the actor "regulator", to match the language of the report.
When I type "define: regulate" into Google, the definition given reads
(1) control or maintain the rate or speed of (a machine or process) so that it operates properly. (2) control or supervise (something, especially a company or business activity) by means of rules and regulations. (3) set (a clock or other apparatus) according to an external standard.
The second seems to me entirely consistent with my understanding of the Report's provision. Other dictionaries will no doubt offer slightly different definition, and I assume the implementation team will look at a few.
Anyway, this isn't easy, and we're fumbling for the right works, in the dark together, hand-in-hand.
All the best,
Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a "belt and suspenders" approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): "ICANN shall not act outside its Mission." So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don't raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term "regulation" and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN's Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN's Mission on services that use the Internet's unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that
cannot
now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN's Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN's Mission on services that use the Internet's unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
***********************************************************************
***************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
*********************************************************************** ***************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Sent from my iDevice; please excuse terseness and typos.
On 11 Apr 2016, at 23:04, Silver, Bradley <Bradley.Silver@timewarner.com> wrote:
The problem with that solution is that it does not begin from where the report left off. The CCWG was unable to reach agreement on what was meant by the verb "regulate" or what it meant for ICANN to be a "regulator". Rather, agreement was reached on ICANN not "imposing regulations" on services, and the content of such services. It is this concept of "imposing regulations" that needs translation. I see no reason to depart from "imposing", which has a clear meaning, and I am sure the lawyers can find a substitute for the term "regulations". I look forward to seeing what they come back with.
Bradley, If we're going to stick closely to the text of the approved Report, and I agree with you that we should, we should remember what that text says: " Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide" Interestingly, the word "imposing" does not appear. Nor does any direct reference to terms and conditions. Looking at this sentence, do you see any reason (if we need to avoid the word "regulate") why "control or constrain" could not be substituted? Is that not the essence of regulation, to control or constrain an outcome or activity? Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of James Gannon Sent: Monday, April 11, 2016 5:45 PM To: Gregory, Holly; Mueller, Milton L; Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
For whats its worth it would work for me also.
-James
On 11/04/2016, 10:22 p.m., "accountability-cross-community-bounces@icann.org on behalf of Gregory, Holly" <accountability-cross-community-bounces@icann.org on behalf of holly.gregory@sidley.com> wrote:
Good question Milton, I would like to know if that word works.
HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory@sidley.com -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, April 11, 2016 3:59 PM To: Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
What's wrong with the word "control" instead of "regulate"?
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 3:13 PM To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 11/04/2016 19:42, Silver, Bradley wrote: Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be trying to do, and almost completely agreed on how to express it as well.
You mention "what regulators do". Certainly in my experience they don't only rely on imposing terms and conditions, but use a variety of mechanisms to achieve their goals, from formal law to seeking to cajole corporate representatives and leadership. So I think that reasoning also supports a broader definition.
But perhaps we should stick more closely to the verb "regulate" than the actor "regulator", to match the language of the report.
When I type "define: regulate" into Google, the definition given reads
(1) control or maintain the rate or speed of (a machine or process) so that it operates properly. (2) control or supervise (something, especially a company or business activity) by means of rules and regulations. (3) set (a clock or other apparatus) according to an external standard.
The second seems to me entirely consistent with my understanding of the Report's provision. Other dictionaries will no doubt offer slightly different definition, and I assume the implementation team will look at a few.
Anyway, this isn't easy, and we're fumbling for the right works, in the dark together, hand-in-hand.
All the best,
Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report.
I therefore propose we transmit the following request to the implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide".
That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
*********************************************************************** ***************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
*********************************************************************** ***************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
=================================================================
Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com
=================================================================
================================================================= 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. =================================================================
Given the continued debate and lack of agreement regarding any of our many efforts to propose language, consider reverting to the precise language of the Final Report: ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide. HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Monday, April 11, 2016 6:45 PM To: Silver, Bradley Cc: James Gannon; Gregory, Holly; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section Sent from my iDevice; please excuse terseness and typos. On 11 Apr 2016, at 23:04, Silver, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> wrote: The problem with that solution is that it does not begin from where the report left off. The CCWG was unable to reach agreement on what was meant by the verb "regulate" or what it meant for ICANN to be a "regulator". Rather, agreement was reached on ICANN not "imposing regulations" on services, and the content of such services. It is this concept of "imposing regulations" that needs translation. I see no reason to depart from "imposing", which has a clear meaning, and I am sure the lawyers can find a substitute for the term "regulations". I look forward to seeing what they come back with. Bradley, If we're going to stick closely to the text of the approved Report, and I agree with you that we should, we should remember what that text says: " · Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide" Interestingly, the word "imposing" does not appear. Nor does any direct reference to terms and conditions. Looking at this sentence, do you see any reason (if we need to avoid the word "regulate") why "control or constrain" could not be substituted? Is that not the essence of regulation, to control or constrain an outcome or activity? Malcolm. -----Original Message----- From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of James Gannon Sent: Monday, April 11, 2016 5:45 PM To: Gregory, Holly; Mueller, Milton L; Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section For whats its worth it would work for me also. -James On 11/04/2016, 10:22 p.m., "accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Gregory, Holly" <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Good question Milton, I would like to know if that word works. HOLLY J. GREGORY Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice SIDLEY AUSTIN LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> -----Original Message----- From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, April 11, 2016 3:59 PM To: Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section What's wrong with the word "control" instead of "regulate"? -----Original Message----- 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: Monday, April 11, 2016 3:13 PM To: Silver, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>; Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section On 11/04/2016 19:42, Silver, Bradley wrote: Thanks Malcom (and Becky). It is important that the implementing language be clear and unequivocal. The concept we agreed on was "regulation", which is a specific type of activity. If there are reasons why we cannot use this term in the context of ICANN's activities, we the lawyers should therefore seek to approximate this type of activity that regulators do. Our discussions in the CCWG were recent enough that we can all remember how carefully these words were chosen, and how much they were debated, and if we had wanted to impose some sort of limitation on the terms of the RA or RAA that was not already encompassed by the description of ICANN's mission, we could have said so - and we did not. The concept was one of ICANN attempting to exert a power to impose rules/conditions on third party services and content, and I think it's important to stay faithful to that, without reopening the debate we had in the CCWG. Bradley, I think we're in complete agreement as to what we should be trying to do, and almost completely agreed on how to express it as well. You mention "what regulators do". Certainly in my experience they don't only rely on imposing terms and conditions, but use a variety of mechanisms to achieve their goals, from formal law to seeking to cajole corporate representatives and leadership. So I think that reasoning also supports a broader definition. But perhaps we should stick more closely to the verb "regulate" than the actor "regulator", to match the language of the report. When I type "define: regulate" into Google, the definition given reads (1) control or maintain the rate or speed of (a machine or process) so that it operates properly. (2) control or supervise (something, especially a company or business activity) by means of rules and regulations. (3) set (a clock or other apparatus) according to an external standard. The second seems to me entirely consistent with my understanding of the Report's provision. Other dictionaries will no doubt offer slightly different definition, and I assume the implementation team will look at a few. Anyway, this isn't easy, and we're fumbling for the right works, in the dark together, hand-in-hand. All the best, Malcolm. -----Original Message----- 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: Monday, April 11, 2016 2:15 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section I see that Becky has replied to my message in the paper distributed for this evening's meeting, but the reply was not otherwise copied to the list. For ease of reference (and reply), here it is. Becky Burr wrote: Malcolm is correct that proposed text is different from the Report. In the course of drafting, the CCWG attorneys pointed out that the construct (no regulation of services etc.) could create unintended consequences related to the application of antitrust law. This was viewed as particularly problematic under the current circumstances, where the supervision of the US government (which at least arguably provides some protection for ICANN) is being withdrawn. We attempted to eliminate this problem and discussed several approaches to doing so. This approach seemed to get at the concern that was animating the CCWG in its discussions on this point, use of the Registry Agreement and Registrar Accreditation Agreement to regulate registrant conduct. Malcolm is correct, of course, that ICANN might attempt to use some other vehicle to regulate content. But it is critical to keep in mind that the prohibition on regulation is, by nature, a “belt and suspenders” approach. Keep in mind that ICANN is prohibited from doing exceeding its Mission. See Section 1.1.(b): “ICANN shall not act outside its Mission.” So no matter what other mechanism ICANN might find to attempt to regulate content, the Bylaws simply prohibit that. We are open to other constructs, so long as they don’t raise the same antitrust concerns identified by Holly and Rosemary in our discussions. At a minimum, that requires us to avoid the term “regulation” and to be as concrete as possible. On 08/04/2016 12:28, Malcolm Hutty wrote: I have found a discrepancy between CCWG Final Report and the implementation of the draft Bylaws in the Mission section. The Report approved by the Chartering Organisations says: "* Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." (paragraph 134) The Draft Bylaws implements this as follows: "* ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." (Article I Section 1.1 (c)) Firstly, this draft bylaw would pick on only one means by which ICANN might seek to regulate content (through the RA or RAA contracts), and prohibits that. There is no such limitation in the CCWG Report: our Report prohibits any attempt to regulate content by ICANN, whether through the RA/RAA contracts or by any other means. Certainly, the RA/RAA contract is the most likely means by which ICANN might seek to regulate content and services. However, if ICANN manages to come up with some other means (including means that cannot now be imagined) then a full implementation of the CCWG Report would cover that too. This is a clear and objective discrepancy. Secondly, the CCWG Report expresses this limitation as an exclusion from the Mission. That was quite deliberate, and significant. We never expressed this section as a bare prohibition on some action, it was always considered to be essential that it was a Mission limitation. This aspect of the Report's proposal is not reflected in the draft bylaw at all. That is also clear discrepancy. The significance of this is that a Mission limitation has a broader scope. Excluding regulation of content from the Mission means any action aimed at regulating content can be challenged, including actions that (if done for some legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely prohibits a certain class of action is weaker, because it says it's OK for ICANN to regulate content if it can find some way of doing so within its permitted powers. That's simply not consistent with the Report approved by the Chartering Organisations. Finally, in the future there may arise some disagreement as to whether a specific activity constitutes "regulation", in particular in marginal cases. Before we adopted the Report, our lawyers advised us not to seek to tightly define this in every particular, but to allow precedent to develop as cases arise. We accepted that advice. The implementation team should therefore avoid seeking to resolve that deliberate ambiguity in favour of the narrowest possible definition of regulation: again, that's not consistent with the Report. I therefore propose we transmit the following request to the implementation team. "Article I Section 1.1(c) implements paragraph 134 of the CCWG Report (prohibition of regulation of content) as a prohibition use of its contracts with registries and registrars to regulate content. This does not fully implement our Report. Please ensure that ICANN is prohibited from regulating content through any mechanism, not only through registry and registrar contracts. Furthermore, please exclude express this as an exclusion from the Mission, not merely a bare prohibition on certain actions, so that activities that would otherwise be permitted to ICANN can be challenged if they are designed to achieve this prohibited purpose." I hesitate to offer alternative wording: the lawyers may wish to come up with their own, and we should let them. But I will offer these observations and a brief suggestion. 1. I understand that the lawyers wished to avoid use of the word regulation. Fine. 2. When moving away from the word regulation, they also moved away from describing a class of activity (regulation) to a specific action (using X contract in Y way). I think this is where they went wrong. This in itself limits the scope of the restriction. 3. Sticking as closely as possible to the text of the Report that Chartering Organisations have approved would seem advisable. So if they want to avoid the word regulation, look for some synonym. Thus compare our Report: "Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." with the implementation team's draft bylaw "ICANN shall not use its contracts with registries and registrars to impose terms and conditions that exceed the scope of ICANN’s Mission on services that use the Internet’s unique identifiers or the content that such services carry or provide." and my alternative suggestion for this Bylaw "ICANN's Mission does not include seeking to constrain or impose requirements upon the services the use the Domain Name System, nor seeking to constrain the content that those services carry or provide". That would follow the Report as closely as possible, preserve the restriction as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal of avoiding the word "regulate". Kind Regards, 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=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=OoJvdencSdSZeSe7gWI-W9ox0F648jVAYtbWqJcY02s&s=qrXVguIgSInzwevgXduMhUrtM2I9lvqO-MOE83gcZak&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: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=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=OoJvdencSdSZeSe7gWI-W9ox0F648jVAYtbWqJcY02s&s=5Ahzycats-0nmgKKAoPhmaoOzi6wpg0ZxmE9_YIkutI&e=> _______________________________________________ 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=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=OoJvdencSdSZeSe7gWI-W9ox0F648jVAYtbWqJcY02s&s=5Ahzycats-0nmgKKAoPhmaoOzi6wpg0ZxmE9_YIkutI&e=> *********************************************************************** ***************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. *********************************************************************** ***************************** _______________________________________________ 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=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=OoJvdencSdSZeSe7gWI-W9ox0F648jVAYtbWqJcY02s&s=5Ahzycats-0nmgKKAoPhmaoOzi6wpg0ZxmE9_YIkutI&e=> _______________________________________________ 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=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=OoJvdencSdSZeSe7gWI-W9ox0F648jVAYtbWqJcY02s&s=5Ahzycats-0nmgKKAoPhmaoOzi6wpg0ZxmE9_YIkutI&e=> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. =================================================================
On Mon, Apr 11, 2016 at 11:20:19PM +0000, Gregory, Holly wrote:
Given the continued debate and lack of agreement regarding any of our many efforts to propose language, consider reverting to the precise language of the Final Report:
ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide.
It's certainly what the CCWG asked for, and it seems plain enough to me. A -- Andrew Sullivan ajs@anvilwalrusden.com
Agree, no idea why this was a concern initially as the final report text seem quite straightforward. Regards Sent from my LG G4 Kindly excuse brevity and typos On 12 Apr 2016 00:20, "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Given the continued debate and lack of agreement regarding any of our many efforts to propose language, consider reverting to the precise language of the Final Report:
ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide.
*HOLLY J. GREGORY* Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
*SIDLEY AUSTIN LLP *+1 212 839 5853 holly.gregory@sidley.com
*From:* Malcolm Hutty [mailto:malcolm@linx.net] *Sent:* Monday, April 11, 2016 6:45 PM *To:* Silver, Bradley *Cc:* James Gannon; Gregory, Holly; Mueller, Milton L; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Implementation flaw in Mission section
Sent from my iDevice; please excuse terseness and typos.
On 11 Apr 2016, at 23:04, Silver, Bradley <Bradley.Silver@timewarner.com> wrote:
The problem with that solution is that it does not begin from where the report left off. The CCWG was unable to reach agreement on what was meant by the verb "regulate" or what it meant for ICANN to be a "regulator". Rather, agreement was reached on ICANN not "imposing regulations" on services, and the content of such services. It is this concept of "imposing regulations" that needs translation. I see no reason to depart from "imposing", which has a clear meaning, and I am sure the lawyers can find a substitute for the term "regulations". I look forward to seeing what they come back with.
Bradley,
If we're going to stick closely to the text of the approved Report, and I agree with you that we should, we should remember what that text says:
"
· Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide"
Interestingly, the word "imposing" does not appear. Nor does any direct reference to terms and conditions. Looking at this sentence, do you see any reason (if we need to avoid the word "regulate") why "control or constrain" could not be substituted? Is that not the essence of regulation, to control or constrain an outcome or activity?
Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of James Gannon Sent: Monday, April 11, 2016 5:45 PM To: Gregory, Holly; Mueller, Milton L; Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
For whats its worth it would work for me also.
-James
On 11/04/2016, 10:22 p.m., " accountability-cross-community-bounces@icann.org on behalf of Gregory, Holly" <accountability-cross-community-bounces@icann.org on behalf of holly.gregory@sidley.com> wrote:
Good question Milton, I would like to know if that word works.
HOLLY J. GREGORY
Partner and Co-Chair, Global Corporate Governance & Executive
Compensation Practice
SIDLEY AUSTIN LLP
+1 212 839 5853
holly.gregory@sidley.com
-----Original Message-----
From: accountability-cross-community-bounces@icann.org
[mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of
Mueller, Milton L
Sent: Monday, April 11, 2016 3:59 PM
To: Malcolm Hutty; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
What's wrong with the word "control" instead of "regulate"?
-----Original Message-----
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: Monday, April 11, 2016 3:13 PM
To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability
Cross Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 11/04/2016 19:42, Silver, Bradley wrote:
Thanks Malcom (and Becky). It is important that the implementing
language be clear and unequivocal. The concept we agreed on was
"regulation", which is a specific type of activity. If there are
reasons why we cannot use this term in the context of ICANN's
activities, we the lawyers should therefore seek to approximate
this type of activity that regulators do. Our discussions in the
CCWG were recent enough that we can all remember how carefully
these words were chosen, and how much they were debated, and if we
had wanted to
impose
some sort of limitation on the terms of the RA or RAA that was not
already encompassed by the description of ICANN's mission, we
could have said so - and we did not. The concept was one of ICANN
attempting to exert a power to impose rules/conditions on third
party services and content, and I think it's important to stay
faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be
trying to do, and almost completely agreed on how to express it as well.
You mention "what regulators do". Certainly in my experience they
don't only rely on imposing terms and conditions, but use a variety
of mechanisms to achieve their goals, from formal law to seeking to
cajole corporate representatives and leadership. So I think that
reasoning also supports a broader definition.
But perhaps we should stick more closely to the verb "regulate" than
the actor "regulator", to match the language of the report.
When I type "define: regulate" into Google, the definition given
reads
(1) control or maintain the rate or speed of (a machine or process)
so that it operates properly.
(2) control or supervise (something, especially a company or business
activity) by means of rules and regulations.
(3) set (a clock or other apparatus) according to an external standard.
The second seems to me entirely consistent with my understanding of
the Report's provision. Other dictionaries will no doubt offer
slightly different definition, and I assume the implementation team will look at a few.
Anyway, this isn't easy, and we're fumbling for the right works, in
the dark together, hand-in-hand.
All the best,
Malcolm.
-----Original Message----- 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: Monday, April 11, 2016 2:15 PM To:
Accountability Cross Community Subject: Re: [CCWG-ACCT]
Implementation
flaw in Mission section
I see that Becky has replied to my message in the paper distributed
for this evening's meeting, but the reply was not otherwise copied
to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report.
In the course of drafting, the CCWG attorneys pointed out that the
construct (no regulation of services etc.) could create unintended
consequences related to the application of antitrust law. This was
viewed as particularly problematic under the current
circumstances, where the supervision of the US government (which
at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several
approaches to doing so. This approach seemed to get at the concern
that was animating the CCWG in its discussions on this point, use
of the Registry Agreement and Registrar Accreditation Agreement to
regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use
some other vehicle to regulate content. But it is critical to keep
in mind that the prohibition on regulation is, by nature, a “belt
and suspenders” approach. Keep in mind that ICANN is prohibited
from doing exceeding its Mission. See Section 1.1.(b): “ICANN
shall not act outside its Mission.” So no matter what other
mechanism ICANN might find to attempt to regulate content, the
Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the
same antitrust concerns identified by Holly and Rosemary in our
discussions. At a minimum, that requires us to avoid the term
“regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the
implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of
services that use the Domain Name System or the regulation of the
content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not
use its contracts with registries and registrars to impose terms
and conditions that exceed the scope of ICANN’s Mission on
services that use the Internet’s unique identifiers or the content
that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which
ICANN might seek to regulate content (through the RA or RAA
contracts), and prohibits that. There is no such limitation in the
CCWG Report: our Report prohibits any attempt to regulate content
by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which
ICANN might seek to regulate content and services. However, if
ICANN manages to come up with some other means (including means
that
cannot
now be imagined) then a full implementation of the CCWG Report
would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an
exclusion from the Mission. That was quite deliberate, and
significant. We never expressed this section as a bare prohibition
on some action, it was always considered to be essential that it
was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft
bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a
broader scope. Excluding regulation of content from the Mission
means any action aimed at regulating content can be challenged,
including actions that (if done for some legitimate purpose) would
be entirely OK. By contrast, a Bylaw that merely prohibits a
certain class of action is weaker, because it says it's OK for
ICANN to regulate content if it can find some way of doing so
within its permitted powers. That's simply not consistent with the
Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to
whether a specific activity constitutes "regulation", in
particular in marginal cases. Before we adopted the Report, our
lawyers advised us not to seek to tightly define this in every
particular, but to allow precedent to develop as cases arise. We accepted that advice.
The implementation team should therefore avoid seeking to resolve
that deliberate ambiguity in favour of the narrowest possible
definition of regulation: again, that's not consistent with the
Report.
I therefore propose we transmit the following request to the
implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG
Report (prohibition of regulation of content) as a prohibition use
of its contracts with registries and registrars to regulate
content. This does not fully implement our Report. Please ensure
that ICANN is prohibited from regulating content through any
mechanism, not only through registry and registrar contracts.
Furthermore, please exclude express this as an exclusion from the
Mission, not merely a bare prohibition on certain actions, so that
activities that would otherwise be permitted to ICANN can be
challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to
come up with their own, and we should let them. But I will offer
these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word
regulation. Fine. 2. When moving away from the word regulation,
they also moved away from describing a class of activity
(regulation) to a specific action (using X contract in Y way). I
think this is where they went wrong. This in itself limits the
scope of the restriction. 3. Sticking as closely as possible to
the text of the Report that Chartering Organisations have approved
would seem advisable. So if they want to avoid the word
regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not
include the regulation of services that use the Domain Name System
or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars
to impose terms and conditions that exceed the scope of ICANN’s
Mission on services that use the Internet’s unique identifiers or
the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose
requirements upon the services the use the Domain Name System, nor
seeking to constrain the content that those services carry or
provide".
That would follow the Report as closely as possible, preserve the
restriction as a limit on ICANN's Mission as intended, and still
achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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...>
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/account <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
...
It would be good to have an idea of what the antitrust concern around using "regulation" was before agreeing to this or any other formulation with "regulation" in it. That said, this would certainly short-cut the quest to find a way to translate the report into the Bylaws! As such, I cautiously believe this should work, subject to understanding the legal concern that drove us away from "regulate" in the first place. Greg [image: http://hilweb1/images/signature.jpg] *Gregory S. Shatan | Partner*McCARTER & ENGLISH, LLP 245 Park Avenue, 27th Floor | New York, New York 10167 T: 212-609-6873 F: 212-416-7613 gshatan @mccarter.com | www.mccarter.com BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC On Tue, Apr 12, 2016 at 1:44 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Agree, no idea why this was a concern initially as the final report text seem quite straightforward.
Regards
Sent from my LG G4 Kindly excuse brevity and typos On 12 Apr 2016 00:20, "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Given the continued debate and lack of agreement regarding any of our many efforts to propose language, consider reverting to the precise language of the Final Report:
ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide.
*HOLLY J. GREGORY* Partner and Co-Chair, Global Corporate Governance & Executive Compensation Practice
*SIDLEY AUSTIN LLP *+1 212 839 5853 holly.gregory@sidley.com
*From:* Malcolm Hutty [mailto:malcolm@linx.net] *Sent:* Monday, April 11, 2016 6:45 PM *To:* Silver, Bradley *Cc:* James Gannon; Gregory, Holly; Mueller, Milton L; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Implementation flaw in Mission section
Sent from my iDevice; please excuse terseness and typos.
On 11 Apr 2016, at 23:04, Silver, Bradley <Bradley.Silver@timewarner.com> wrote:
The problem with that solution is that it does not begin from where the report left off. The CCWG was unable to reach agreement on what was meant by the verb "regulate" or what it meant for ICANN to be a "regulator". Rather, agreement was reached on ICANN not "imposing regulations" on services, and the content of such services. It is this concept of "imposing regulations" that needs translation. I see no reason to depart from "imposing", which has a clear meaning, and I am sure the lawyers can find a substitute for the term "regulations". I look forward to seeing what they come back with.
Bradley,
If we're going to stick closely to the text of the approved Report, and I agree with you that we should, we should remember what that text says:
"
· Clarify that ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide"
Interestingly, the word "imposing" does not appear. Nor does any direct reference to terms and conditions. Looking at this sentence, do you see any reason (if we need to avoid the word "regulate") why "control or constrain" could not be substituted? Is that not the essence of regulation, to control or constrain an outcome or activity?
Malcolm.
-----Original Message----- From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of James Gannon Sent: Monday, April 11, 2016 5:45 PM To: Gregory, Holly; Mueller, Milton L; Malcolm Hutty; Accountability Cross Community Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
For whats its worth it would work for me also.
-James
On 11/04/2016, 10:22 p.m., " accountability-cross-community-bounces@icann.org on behalf of Gregory, Holly" <accountability-cross-community-bounces@icann.org on behalf of holly.gregory@sidley.com> wrote:
Good question Milton, I would like to know if that word works.
HOLLY J. GREGORY
Partner and Co-Chair, Global Corporate Governance & Executive
Compensation Practice
SIDLEY AUSTIN LLP
+1 212 839 5853
holly.gregory@sidley.com
-----Original Message-----
From: accountability-cross-community-bounces@icann.org
[mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of
Mueller, Milton L
Sent: Monday, April 11, 2016 3:59 PM
To: Malcolm Hutty; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
What's wrong with the word "control" instead of "regulate"?
-----Original Message-----
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: Monday, April 11, 2016 3:13 PM
To: Silver, Bradley <Bradley.Silver@timewarner.com>; Accountability
Cross Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Implementation flaw in Mission section
On 11/04/2016 19:42, Silver, Bradley wrote:
Thanks Malcom (and Becky). It is important that the implementing
language be clear and unequivocal. The concept we agreed on was
"regulation", which is a specific type of activity. If there are
reasons why we cannot use this term in the context of ICANN's
activities, we the lawyers should therefore seek to approximate
this type of activity that regulators do. Our discussions in the
CCWG were recent enough that we can all remember how carefully
these words were chosen, and how much they were debated, and if we
had wanted to
impose
some sort of limitation on the terms of the RA or RAA that was not
already encompassed by the description of ICANN's mission, we
could have said so - and we did not. The concept was one of ICANN
attempting to exert a power to impose rules/conditions on third
party services and content, and I think it's important to stay
faithful to that, without reopening the debate we had in the CCWG.
Bradley, I think we're in complete agreement as to what we should be
trying to do, and almost completely agreed on how to express it as well.
You mention "what regulators do". Certainly in my experience they
don't only rely on imposing terms and conditions, but use a variety
of mechanisms to achieve their goals, from formal law to seeking to
cajole corporate representatives and leadership. So I think that
reasoning also supports a broader definition.
But perhaps we should stick more closely to the verb "regulate" than
the actor "regulator", to match the language of the report.
When I type "define: regulate" into Google, the definition given
reads
(1) control or maintain the rate or speed of (a machine or process)
so that it operates properly.
(2) control or supervise (something, especially a company or business
activity) by means of rules and regulations.
(3) set (a clock or other apparatus) according to an external standard.
The second seems to me entirely consistent with my understanding of
the Report's provision. Other dictionaries will no doubt offer
slightly different definition, and I assume the implementation team will look at a few.
Anyway, this isn't easy, and we're fumbling for the right works, in
the dark together, hand-in-hand.
All the best,
Malcolm.
-----Original Message----- 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: Monday, April 11, 2016 2:15 PM To:
Accountability Cross Community Subject: Re: [CCWG-ACCT]
Implementation
flaw in Mission section
I see that Becky has replied to my message in the paper distributed
for this evening's meeting, but the reply was not otherwise copied
to the list. For ease of reference (and reply), here it is.
Becky Burr wrote:
Malcolm is correct that proposed text is different from the Report.
In the course of drafting, the CCWG attorneys pointed out that the
construct (no regulation of services etc.) could create unintended
consequences related to the application of antitrust law. This was
viewed as particularly problematic under the current
circumstances, where the supervision of the US government (which
at least arguably provides some protection for ICANN) is being withdrawn.
We attempted to eliminate this problem and discussed several
approaches to doing so. This approach seemed to get at the concern
that was animating the CCWG in its discussions on this point, use
of the Registry Agreement and Registrar Accreditation Agreement to
regulate registrant conduct.
Malcolm is correct, of course, that ICANN might attempt to use
some other vehicle to regulate content. But it is critical to keep
in mind that the prohibition on regulation is, by nature, a “belt
and suspenders” approach. Keep in mind that ICANN is prohibited
from doing exceeding its Mission. See Section 1.1.(b): “ICANN
shall not act outside its Mission.” So no matter what other
mechanism ICANN might find to attempt to regulate content, the
Bylaws simply prohibit that.
We are open to other constructs, so long as they don’t raise the
same antitrust concerns identified by Holly and Rosemary in our
discussions. At a minimum, that requires us to avoid the term
“regulation” and to be as concrete as possible.
On 08/04/2016 12:28, Malcolm Hutty wrote:
I have found a discrepancy between CCWG Final Report and the
implementation of the draft Bylaws in the Mission section.
The Report approved by the Chartering Organisations says:
"* Clarify that ICANN’s Mission does not include the regulation of
services that use the Domain Name System or the regulation of the
content these services carry or provide." (paragraph 134)
The Draft Bylaws implements this as follows: "* ICANN shall not
use its contracts with registries and registrars to impose terms
and conditions that exceed the scope of ICANN’s Mission on
services that use the Internet’s unique identifiers or the content
that such services carry or provide." (Article I Section 1.1 (c))
Firstly, this draft bylaw would pick on only one means by which
ICANN might seek to regulate content (through the RA or RAA
contracts), and prohibits that. There is no such limitation in the
CCWG Report: our Report prohibits any attempt to regulate content
by ICANN, whether through the RA/RAA contracts or by any other means.
Certainly, the RA/RAA contract is the most likely means by which
ICANN might seek to regulate content and services. However, if
ICANN manages to come up with some other means (including means
that
cannot
now be imagined) then a full implementation of the CCWG Report
would cover that too.
This is a clear and objective discrepancy.
Secondly, the CCWG Report expresses this limitation as an
exclusion from the Mission. That was quite deliberate, and
significant. We never expressed this section as a bare prohibition
on some action, it was always considered to be essential that it
was a Mission limitation.
This aspect of the Report's proposal is not reflected in the draft
bylaw at all. That is also clear discrepancy.
The significance of this is that a Mission limitation has a
broader scope. Excluding regulation of content from the Mission
means any action aimed at regulating content can be challenged,
including actions that (if done for some legitimate purpose) would
be entirely OK. By contrast, a Bylaw that merely prohibits a
certain class of action is weaker, because it says it's OK for
ICANN to regulate content if it can find some way of doing so
within its permitted powers. That's simply not consistent with the
Report approved by the Chartering Organisations.
Finally, in the future there may arise some disagreement as to
whether a specific activity constitutes "regulation", in
particular in marginal cases. Before we adopted the Report, our
lawyers advised us not to seek to tightly define this in every
particular, but to allow precedent to develop as cases arise. We accepted that advice.
The implementation team should therefore avoid seeking to resolve
that deliberate ambiguity in favour of the narrowest possible
definition of regulation: again, that's not consistent with the
Report.
I therefore propose we transmit the following request to the
implementation team.
"Article I Section 1.1(c) implements paragraph 134 of the CCWG
Report (prohibition of regulation of content) as a prohibition use
of its contracts with registries and registrars to regulate
content. This does not fully implement our Report. Please ensure
that ICANN is prohibited from regulating content through any
mechanism, not only through registry and registrar contracts.
Furthermore, please exclude express this as an exclusion from the
Mission, not merely a bare prohibition on certain actions, so that
activities that would otherwise be permitted to ICANN can be
challenged if they are designed to achieve this prohibited purpose."
I hesitate to offer alternative wording: the lawyers may wish to
come up with their own, and we should let them. But I will offer
these observations and a brief suggestion.
1. I understand that the lawyers wished to avoid use of the word
regulation. Fine. 2. When moving away from the word regulation,
they also moved away from describing a class of activity
(regulation) to a specific action (using X contract in Y way). I
think this is where they went wrong. This in itself limits the
scope of the restriction. 3. Sticking as closely as possible to
the text of the Report that Chartering Organisations have approved
would seem advisable. So if they want to avoid the word
regulation, look for some synonym.
Thus compare our Report: "Clarify that ICANN’s Mission does not
include the regulation of services that use the Domain Name System
or the regulation of the content these services carry or provide."
with the implementation team's draft bylaw
"ICANN shall not use its contracts with registries and registrars
to impose terms and conditions that exceed the scope of ICANN’s
Mission on services that use the Internet’s unique identifiers or
the content that such services carry or provide."
and my alternative suggestion for this Bylaw
"ICANN's Mission does not include seeking to constrain or impose
requirements upon the services the use the Domain Name System, nor
seeking to constrain the content that those services carry or
provide".
That would follow the Report as closely as possible, preserve the
restriction as a limit on ICANN's Mission as intended, and still
achieve the lawyers' goal of avoiding the word "regulate".
Kind Regards,
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...>
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/account <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
...
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
participants (14)
-
Andrew Sullivan -
Christopher Wilkinson -
Edward Morris -
Greg Shatan -
Gregory, Holly -
James Gannon -
Kavouss Arasteh -
Malcolm Hutty -
Marilyn Cade -
Mueller, Milton L -
Paul Rosenzweig -
Robin Gross -
Seun Ojedeji -
Silver, Bradley