regulatory/mission issue WS2
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep? I could certainly make the argument, based on the proposed mission statement, that ICANN has no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly. (Please note, ICANN’s Bylaws currently authorize ICANN to enter into contracts. See Article XV, Section 1). Should we discuss this approach? The report language on ICANN’s Mission Statement, reflecting the recent changes to address IAB/IETF concerns, would then read: The Mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems in the ways described below. Specifically, ICANN: 1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies: • For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and • That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems. 2. Coordinates the operation and evolution of the DNS root name server system. In this role, ICANN’s Mission is to [to be provided by root server operators]. 3. Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s Mission is described in the ASO MoU between ICANN and RIRs. 4. Collaborates with other bodies as appropriate to publish core registries needed for the functioning of the Internet. In this role, with respect to protocol ports and parameters, ICANN's Mission is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations, such as the Internet Engineering Task Force. ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>
On 06/11/2015 17:30, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep?
While I appreciate the difficult position you are in as Rapporteur in trying to find a solution, I think that's very dangerous and indeed unwise suggestion. Firstly, very many people consider this clause to be an essential component of trusting ICANN, independent of US oversight. You are only proposing deleting this in response to pressure from the intellectual property community, a stakegroup that many other suspect (not without reason) of aspirations to turn ICANN into precisely what is prohibited by this clause. Deleting it will be seen as only confirming those fears. Secondly, there was very strong support for this clause in the previous public comment rounds - not just the previous one, but also the first. Deleting it (especially in the context of the rather compressed process we plan going forward to completion) will be seen as removing a major promised protection at the last moment, and so will also invite trenchant criticism on process grounds, on top of criticism of the substance of the change. Thirdly, your argument that it is duplicative and so unnecessary, while not unreasonable, is by no means overwhelmingly persuasive. One of the mischiefs that this clause seeks to prevent is ICANN claiming that it is entitled to say "In order to register and use a domain, you must comply with community developed policy for domains *regardless of the content of that policy and with no limits on what that policy might contain*". Absent this clause, it is not easy to see conclusive evidence that such a position would be invalid. I know that you place great reliance on Specification 1, and as a Registry for whom Specification 1 is part of your Registry agreement, I can see why that would satisfy your own interests. But others are entitled to fear that future rounds may use a different Specification 1, or none at all, or that Registries might choose to waive Specification 1 and so increase ICANN's role without any consent from other parts of the ICANN community. Registries are not the only stakeholder group with an interest in seeing the substance of Specification 1 maintained, and others who do have no reason to be as satisfied by Specification 1 as a mechanism as Registries may be. Fourthly, your argument that a general limitation to enumerated powers makes a specific exclusion unnecessary is hardly novel. In the time of your own country's adoption of its Constitution, a central point of controversy was the same question, namely whether the Bill of Rights was still necessary, or was unnecessary and indeed undesirable because the Federal government was only granted enumerated powers. You know that the proponents of a Bill of Rights won the argument then, and were vindicated by subsequent history. Finally, perhaps most importantly, this clause provides the most clear and visible commitment that can be pointed to as satisfying the NTIA requirement that the future ICANN, after implementation of our reforms, can be relied upon to continue to support an open Internet. This is a core NTIA criterion. Moreover, this is an issue that is not only of interest to major stakeholder groups within the ICANN community, but has been a central point of focus in Congressional attention to this transition. The last-minute removal of this clause could have a destabilising on political support for transition. I am on record as having said that if we cannot get consensus we should revert to the text of the two previous drafts for public comment. However, the text I offered most recently as a compromise appeared to be getting serious consideration from Greg and the IPC "ICANN shall only act strictly in accordance with its Mission. Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate the content that those services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission." I think it's therefore unfortunate that you should propose deletion, upsetting the possibility of the consensus that had seemed to be close. In the light of these arguments, I hope you feel it best to withdraw your suggestion. 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 Malcolm. I understand the concern, and you are quite right that the prohibition on regulation of such services was in the first and second draft proposal and received strong support (along with the criticism regarding contracting issues). To make it easier for others to follow, the text on the table, proposed by Malcolm on Wednesday evening to address concerns about the definition of ³services that use the Internet¹s unique identifiers² is as follows: "ICANN shall only act strictly in accordance with its Mission. Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate the content that those services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission." J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz> On 11/6/15, 2:21 PM, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 06/11/2015 17:30, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet¹s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep?
While I appreciate the difficult position you are in as Rapporteur in trying to find a solution, I think that's very dangerous and indeed unwise suggestion.
Firstly, very many people consider this clause to be an essential component of trusting ICANN, independent of US oversight. You are only proposing deleting this in response to pressure from the intellectual property community, a stakegroup that many other suspect (not without reason) of aspirations to turn ICANN into precisely what is prohibited by this clause. Deleting it will be seen as only confirming those fears.
Secondly, there was very strong support for this clause in the previous public comment rounds - not just the previous one, but also the first. Deleting it (especially in the context of the rather compressed process we plan going forward to completion) will be seen as removing a major promised protection at the last moment, and so will also invite trenchant criticism on process grounds, on top of criticism of the substance of the change.
Thirdly, your argument that it is duplicative and so unnecessary, while not unreasonable, is by no means overwhelmingly persuasive. One of the mischiefs that this clause seeks to prevent is ICANN claiming that it is entitled to say "In order to register and use a domain, you must comply with community developed policy for domains *regardless of the content of that policy and with no limits on what that policy might contain*". Absent this clause, it is not easy to see conclusive evidence that such a position would be invalid. I know that you place great reliance on Specification 1, and as a Registry for whom Specification 1 is part of your Registry agreement, I can see why that would satisfy your own interests. But others are entitled to fear that future rounds may use a different Specification 1, or none at all, or that Registries might choose to waive Specification 1 and so increase ICANN's role without any consent from other parts of the ICANN community. Registries are not the only stakeholder group with an interest in seeing the substance of Specification 1 maintained, and others who do have no reason to be as satisfied by Specification 1 as a mechanism as Registries may be.
Fourthly, your argument that a general limitation to enumerated powers makes a specific exclusion unnecessary is hardly novel. In the time of your own country's adoption of its Constitution, a central point of controversy was the same question, namely whether the Bill of Rights was still necessary, or was unnecessary and indeed undesirable because the Federal government was only granted enumerated powers. You know that the proponents of a Bill of Rights won the argument then, and were vindicated by subsequent history.
Finally, perhaps most importantly, this clause provides the most clear and visible commitment that can be pointed to as satisfying the NTIA requirement that the future ICANN, after implementation of our reforms, can be relied upon to continue to support an open Internet. This is a core NTIA criterion. Moreover, this is an issue that is not only of interest to major stakeholder groups within the ICANN community, but has been a central point of focus in Congressional attention to this transition. The last-minute removal of this clause could have a destabilising on political support for transition.
I am on record as having said that if we cannot get consensus we should revert to the text of the two previous drafts for public comment. However, the text I offered most recently as a compromise appeared to be getting serious consideration from Greg and the IPC
"ICANN shall only act strictly in accordance with its Mission. Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate the content that those services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission."
I think it's therefore unfortunate that you should propose deletion, upsetting the possibility of the consensus that had seemed to be close.
In the light of these arguments, I hope you feel it best to withdraw your suggestion.
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net _&d=CwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8W DDkMr4k&m=coxTx3RTsHi1Y7gMRPnAN7WWU-oB40GB3fQd-HVCXOU&s=btMehe28QGeZpv5Yl5 BYIijOhtNRBc1Qze7c3gOWDIA&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
Dear Becky I certainly appreciate the challenges you face as a Rapporteur and the effort you are making to find consensus by reducing what is said, but I find myself in agreement with Malcom that the restriction clause you propose deleting is particularly essential -- that is why I supported its development back in March and why it has been a part of the public proposals thus far. I am especially persuaded by the observation that narrow mission statements tend to expand without countervailing affirmative restrictions -- the Bill of Rights analogy seems particularly apt. That is most notably important for me because we are creating what we intend to be a justiciable standard for the IRP to determine when ICANN exceeds its mission. At least in the US the history is that the adjudication of affirmative restrictions is much, much easier then establishing the contours of power grants more generally. To Malcolm's other cogent points I would add only two further thoughts: First, deletion at this late date would create a very unfortunate drafting record. Deletion at the end of the process would be presumed by an independent arbiter to have some intent and meaning and I greatly fear that the inference would be drawn that we intended to negate the substantive restriction. Second, and to my mind more significantly, if we cannot today, at a time when there is no live controversy coloring our judgement, articulate in words the difference between the types of contracts and agreements that we WOULD permit ICANN to enter into and those that we WOULD NOT, then how is it that we would ever expect the IRP to make that judgment down the road in the heat of a particular controversy. Giving up at this point is, effectively, a signal that we can't figure it out -- and if we can't we have no basis for hoping the IRP would. Regards Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Friday, November 6, 2015 2:22 PM To: Burr, Becky <Becky.Burr@neustar.biz>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] regulatory/mission issue WS2 On 06/11/2015 17:30, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet's unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep?
While I appreciate the difficult position you are in as Rapporteur in trying to find a solution, I think that's very dangerous and indeed unwise suggestion. Firstly, very many people consider this clause to be an essential component of trusting ICANN, independent of US oversight. You are only proposing deleting this in response to pressure from the intellectual property community, a stakegroup that many other suspect (not without reason) of aspirations to turn ICANN into precisely what is prohibited by this clause. Deleting it will be seen as only confirming those fears. Secondly, there was very strong support for this clause in the previous public comment rounds - not just the previous one, but also the first. Deleting it (especially in the context of the rather compressed process we plan going forward to completion) will be seen as removing a major promised protection at the last moment, and so will also invite trenchant criticism on process grounds, on top of criticism of the substance of the change. Thirdly, your argument that it is duplicative and so unnecessary, while not unreasonable, is by no means overwhelmingly persuasive. One of the mischiefs that this clause seeks to prevent is ICANN claiming that it is entitled to say "In order to register and use a domain, you must comply with community developed policy for domains *regardless of the content of that policy and with no limits on what that policy might contain*". Absent this clause, it is not easy to see conclusive evidence that such a position would be invalid. I know that you place great reliance on Specification 1, and as a Registry for whom Specification 1 is part of your Registry agreement, I can see why that would satisfy your own interests. But others are entitled to fear that future rounds may use a different Specification 1, or none at all, or that Registries might choose to waive Specification 1 and so increase ICANN's role without any consent from other parts of the ICANN community. Registries are not the only stakeholder group with an interest in seeing the substance of Specification 1 maintained, and others who do have no reason to be as satisfied by Specification 1 as a mechanism as Registries may be. Fourthly, your argument that a general limitation to enumerated powers makes a specific exclusion unnecessary is hardly novel. In the time of your own country's adoption of its Constitution, a central point of controversy was the same question, namely whether the Bill of Rights was still necessary, or was unnecessary and indeed undesirable because the Federal government was only granted enumerated powers. You know that the proponents of a Bill of Rights won the argument then, and were vindicated by subsequent history. Finally, perhaps most importantly, this clause provides the most clear and visible commitment that can be pointed to as satisfying the NTIA requirement that the future ICANN, after implementation of our reforms, can be relied upon to continue to support an open Internet. This is a core NTIA criterion. Moreover, this is an issue that is not only of interest to major stakeholder groups within the ICANN community, but has been a central point of focus in Congressional attention to this transition. The last-minute removal of this clause could have a destabilising on political support for transition. I am on record as having said that if we cannot get consensus we should revert to the text of the two previous drafts for public comment. However, the text I offered most recently as a compromise appeared to be getting serious consideration from Greg and the IPC "ICANN shall only act strictly in accordance with its Mission. Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate the content that those services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission." I think it's therefore unfortunate that you should propose deletion, upsetting the possibility of the consensus that had seemed to be close. In the light of these arguments, I hope you feel it best to withdraw your suggestion. 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
First, deletion at this late date would create a very unfortunate drafting record. Deletion at the end of the process would be presumed by an independent arbiter to have some intent and meaning and I greatly fear that the inference would be drawn that we intended to negate the substantive restriction.
Agree with Paul - the inference is quite worrying, and sends the message that the CCWG has had second thoughts on ICANN's role re: regulation. Arun
Malcolm, A few brief comments inline in direct response to your email and in addition to my not brief comments a few minutes ago. On Fri, Nov 6, 2015 at 2:21 PM, Malcolm Hutty <malcolm@linx.net> wrote:
On 06/11/2015 17:30, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep?
While I appreciate the difficult position you are in as Rapporteur in trying to find a solution, I think that's very dangerous and indeed unwise suggestion.
Firstly, very many people consider this clause to be an essential component of trusting ICANN, independent of US oversight. You are only proposing deleting this in response to pressure from the intellectual property community, a stakegroup that many other suspect (not without reason) of aspirations to turn ICANN into precisely what is prohibited by this clause. Deleting it will be seen as only confirming those fears.
GS: I am here engaging in good faith discussion of concerns that I have about this Bylaw. If that's "pressure," than all that everybody does at ICANN is "pressure." And there's nothing inherently more noble in "pressure" from the ISP/IXP community than from the business/IP community. If you mean something else by "pressure," than that doesn't apply to my interventions here. As for "precisely what is prohibited by this clause" I don't think there is any such thing -- this Bylaw can be seen to prohibit quite a number of things and yet quite a number of similar things will not be prohibited by it, due to the vague and ambiguous wording. What do you think is "precisely what is prohibited by this clause"? Vague imprecations of horrible "aspirations" do not contribute to useful discourse. To the extent it prohibits ICANN from being used to muzzle and oppress those who who express unpopular or controversial opinions or those who create content they want to share with the world -- sign me up. I don't want that either.
Secondly, there was very strong support for this clause in the previous public comment rounds - not just the previous one, but also the first. Deleting it (especially in the context of the rather compressed process we plan going forward to completion) will be seen as removing a major promised protection at the last moment, and so will also invite trenchant criticism on process grounds, on top of criticism of the substance of the change.
GS: Again, I would appreciate some more clarity and specificity about this "major promised protection." Vague or broad statements just compound the problem inherent in this Bylaw.
Thirdly, your argument that it is duplicative and so unnecessary, while not unreasonable, is by no means overwhelmingly persuasive. One of the mischiefs that this clause seeks to prevent is ICANN claiming that it is entitled to say "In order to register and use a domain, you must comply with community developed policy for domains *regardless of the content of that policy and with no limits on what that policy might contain*". Absent this clause, it is not easy to see conclusive evidence that such a position would be invalid.
GS: I think it would be quite clear and conclusive evidence if the policy went beyond the stated Mission -- those are very clear limits on ICANN policy, including community developed policy. I don't think this clause (especially given its ambiguities) provides much if any evidence of what that policy cannot say. (The clause may not be beyond saving, but clarity and conclusiveness are hardly evident at this point.) I know that you place great reliance on
Specification 1, and as a Registry for whom Specification 1 is part of your Registry agreement, I can see why that would satisfy your own interests. But others are entitled to fear that future rounds may use a different Specification 1, or none at all, or that Registries might choose to waive Specification 1 and so increase ICANN's role without any consent from other parts of the ICANN community. Registries are not the only stakeholder group with an interest in seeing the substance of Specification 1 maintained, and others who do have no reason to be as satisfied by Specification 1 as a mechanism as Registries may be.
GS: These contracts are the end result of arduous work both at the policy level and at the contracted parties level. I strongly doubt that the Registries have any capacity, unilaterally or with the agreement of ICANN, to "waive Specification 1." There's no basis for such an assertion.
Fourthly, your argument that a general limitation to enumerated powers makes a specific exclusion unnecessary is hardly novel. In the time of your own country's adoption of its Constitution, a central point of controversy was the same question, namely whether the Bill of Rights was still necessary, or was unnecessary and indeed undesirable because the Federal government was only granted enumerated powers. You know that the proponents of a Bill of Rights won the argument then, and were vindicated by subsequent history.
GS: That's a stirring allusion to history, but it doesn't make Becky's position in this instance any less valid. Both approaches are valid in the appropriate place and time, and need to be viewed in larger contexts. If the Federal government was truly and strictly bound by those enumerated powers and thus left small and weakened, we might not have needed the Bill of Rights -- but we could well still have slavery. Indeed the Bill of Rights in many ways strengthened the Federal Government and empowered it to curb the regressive excesses espoused in certain corners of the country. So, the proponents of the Bill of Rights might not have gotten exactly what they bargained for, even if the Bill of Rights itself has proven to be a great success. But I digress....
Finally, perhaps most importantly, this clause provides the most clear and visible commitment that can be pointed to as satisfying the NTIA requirement that the future ICANN, after implementation of our reforms, can be relied upon to continue to support an open Internet. This is a core NTIA criterion. Moreover, this is an issue that is not only of interest to major stakeholder groups within the ICANN community, but has been a central point of focus in Congressional attention to this transition. The last-minute removal of this clause could have a destabilising on political support for transition.
GS: I have some sympathy with this view, but I think that this clause is only partially (or even incidentally) about an open Internet. As noted above, I'm all in favor of an open Internet -- but not one that is "wide open" like a lawless Old West town or a corrupt port out of some film noir.
I am on record as having said that if we cannot get consensus we should revert to the text of the two previous drafts for public comment. However, the text I offered most recently as a compromise appeared to be getting serious consideration from Greg and the IPC
"ICANN shall only act strictly in accordance with its Mission. Without in any way limiting the foregoing, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers to enable or facilitate their reachability over the Internet, nor shall it regulate the content that those services carry or provide. ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission."
I think it's therefore unfortunate that you should propose deletion, upsetting the possibility of the consensus that had seemed to be close.
GS: I think Becky has offered an elegant and more desirable solution from my point of view. I would not underestimate the amount of work (to which I am committed, as always) needed on the text you offered to get close to consensus. My prior email discusses some of those concerns. If those need to be turned into drafting revisions, that will happen. But I think we owe it to ourselves to explore Becky's suggestion.
In the light of these arguments, I hope you feel it best to withdraw your suggestion.
GS: I have to say that I don't find your arguments so compelling as to create such a feeling for me. Becky can speak for herself. However, I would say that once a suggestion is under discussion, it is not an option for any one person to unilaterally withdraw it (including the one who offered it). As such I think your request is out of order.
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 2015-11-06 23:21, Greg Shatan wrote:
Firstly, very many people consider this clause to be an essential component of trusting ICANN, independent of US oversight. You are only proposing deleting this in response to pressure from the intellectual property community, a stakegroup that many other suspect (not without reason) of aspirations to turn ICANN into precisely what is prohibited by this clause. Deleting it will be seen as only confirming those fears.
GS: I am here engaging in good faith discussion of concerns that I have about this Bylaw. If that's "pressure," than all that everybody does at ICANN is "pressure."
Greg, I did not mean to impute bad faith, and if you took it that way then I apologise for not being more clear. On reflection, I think the above paragraph would have been better with the words "pressure from" omitted. The meaning, as I intended it, would have been just the same. 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 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Unfortunately, this deletion would represent a big step backwards from consensus. There were quite a few public comments from a wide range of stakeholders that made note of the importance of the phrase in the mission to limit ICANN from regulating in this matter, so deleting it now would cause considerable disturbance to the consensus and go against public comment. I appreciate the pressure to appease the IPC, but this would be unfair to the many public commenters and other participants who have been relying on this critical language being included in the final text. Thanks, Robin On Nov 6, 2015, at 9:30 AM, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep? I could certainly make the argument, based on the proposed mission statement, that ICANN has no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly. (Please note, ICANN’s Bylaws currently authorize ICANN to enter into contracts. See Article XV, Section 1).
Should we discuss this approach? The report language on ICANN’s Mission Statement, reflecting the recent changes to address IAB/IETF concerns, would then read:
The Mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems in the ways described below. Specifically, ICANN:
1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies:
• For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and
• That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems.
2. Coordinates the operation and evolution of the DNS root name server system. In this role, ICANN’s Mission is to [to be provided by root server operators].
3. Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.
4. Collaborates with other bodies as appropriate to publish core registries needed for the functioning of the Internet. In this role, with respect to protocol ports and parameters, ICANN's Mission is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations, such as the Internet Engineering Task Force.
ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Well put. I completely agree with Robin on this both in terms of substance and of procedure. We've already seen efforts to bring in content regulation through the back door, most recently in Dublin by some of our friends and colleagues. We need to make it plain, transparent and clear that content regulation is not part of ICANN's remit. The current language does so. The proposed change does not. Best, Ed Sent from my iPhone
On Nov 6, 2015, at 7:38 PM, Robin Gross <robin@ipjustice.org> wrote:
Unfortunately, this deletion would represent a big step backwards from consensus. There were quite a few public comments from a wide range of stakeholders that made note of the importance of the phrase in the mission to limit ICANN from regulating in this matter, so deleting it now would cause considerable disturbance to the consensus and go against public comment. I appreciate the pressure to appease the IPC, but this would be unfair to the many public commenters and other participants who have been relying on this critical language being included in the final text.
Thanks, Robin
On Nov 6, 2015, at 9:30 AM, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep? I could certainly make the argument, based on the proposed mission statement, that ICANN has no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly. (Please note, ICANN’s Bylaws currently authorize ICANN to enter into contracts. See Article XV, Section 1).
Should we discuss this approach? The report language on ICANN’s Mission Statement, reflecting the recent changes to address IAB/IETF concerns, would then read:
The Mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems in the ways described below. Specifically, ICANN:
1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies:
• For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and
• That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems.
2. Coordinates the operation and evolution of the DNS root name server system. In this role, ICANN’s Mission is to [to be provided by root server operators].
3. Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.
4. Collaborates with other bodies as appropriate to publish core registries needed for the functioning of the Internet. In this role, with respect to protocol ports and parameters, ICANN's Mission is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations, such as the Internet Engineering Task Force.
ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz
_______________________________________________ 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
Becky, Thanks again for your suggestion. I think it's a good attempt to "cut the Gordian knot" and avoid the issue of wrestling with a deeply flawed proposed bylaw and I would support it. It is unfortunate that some want to analyze this merely in "tribal" terms or in terms of "appeasement." This is a simplistic misdirection from the more universal issues and problems with the proposed Bylaw. It does expose quite neatly, however, that for some this Bylaw is not here primarily to try and "score points" in a discussion happening elsewhere in ICANN, one that will not be resolved one way or the other in these Bylaws or in the CCWG. Those who want it here for a particular purpose see it only for that purpose, and end up overlooking the fundamental infirmities, ambiguities and difficulties inherent in the proposed Bylaw, whether one looks at it as an instruction to our lawyers or as an attempt to draft an actual Bylaw. As Becky notes, while there was support for the Bylaw, there was also considerable concern about the effect it would have on contracts. Any solution has to take those issues into account. We have still not resolved the issue of what is meant by a "service," an ambiguous term that apparently may have a meaning specific to Telcoms professionals but not one that is broadly understood or tends to exclude other meanings in the context of a corporate Bylaw. I am confident that our lawyers (even though one is a Tech Transactions lawyer not unlike myself) will not grasp what Malcolm thinks this conveys. In any event, one of the rules of good legal drafting is to avoid jargon or terms of art specific to an industry, except in a document of such narrow application that it will be instantly obvious what the meaning is. In any event, many types of legal documents have "definitions" section, where terms are defined and ambiguities resolved. The new language proposed by Malcolm is somewhat enlightening (though clunky) but doesn't really solve the problem, because it is still modifying the term "services" where the real issue lies. We have not resolved what is meant by "regulation" and what is excluded from "regulation" even though it could reasonably be called regulation. It may seem self-evident to one steeped in ICANN that Consensus Policy is not regulation (or that a registry or a registrar is not a "service") but that is not otherwise clear from this Bylaw. As for "content" -- it's not clear what that covers either. Alan Greenberg has asked for a clarification (not satisfactorily dealt with) that "unique identifiers" are not "content" within the meaning of this Bylaw. Are PICs a form of "content regulation"? How about the UDRP (which is clearly permitted under Specification 1, even though it takes "use" (i.e., content) into account)? Or the URS and the PDDRP? The purpose is also far from clear from the language itself, although those that placed it here seem to know what they think they want it to cover, and hope to coax out of its opacity. (And I think different people or groups want different things out of the same language.) I'm still not sure of all the possibilities myself. If the idea of the "services" clause is that ICANN shouldn't have the power to "regulate" ISPs and IXPs, then it should say so -- but I"m not sure that's what it's about. It's also completely unclear what the linkage is between the last sentence and the second sentence. They sit next to each other in this particular Bylaw, so some linkage is intended, but what that linkage is remains largely obscure. Now perhaps all this ambiguity and obscurity is a good thing, because the reasonable interpretations of this Bylaw will vary so wildly that we will spend years disputing its meaning and using it to support widely varying conclusions, like the murmurings of some Delphic oracle. In the end this will probably do little to advance the resolution of the concerns at which it is aimed, and may actually hinder such resolution. Maybe we can still resolve the issues in Malcolm's redraft of the Bylaws to everyone's reasonable satisfaction. But we are working with poor materials, and the result will still be troublesome for that reason. Your revision has raised my hopes that we don't have to to do so. In retrospect, we probably would have been better off with something that did not look like a bylaw, but instead said in plain English, "We want a bylaw that accomplishes the following:" Of course, then we would have to deal directly with the issues, instead of quasi-lawyering our way through a series of unkempt phrases that will more likely bedevil us than serve us in the years ahead. Speaking for myself, if the purpose of this is to avoid, in general terms, the imposition of unilateral restrictions on ISPs and IXPs, I am highly sympathetic to that, and I don't think it runs at cross-purposes to my concerns, except perhaps on the verges. Similarly, if the purpose is to stop ICANN from being used as a tool for the unilateral imposition of rules designed to stifle the expression of opinions or the expression of creators of content, and thereby create a less "open" Internet, I am highly sympathetic to that as well. A Bylaw that does both of those things, and only those things, should have broad support from all stakeholder groups, including the business and intellectual property communities. However, a Bylaw that cloaks itself in these things, but is intended to nullify portions of ICANN's existing contracts or to protect those who engage in illegal activity, including trafficking in stolen property -- I have no sympathy with that whatsoever. I think that is a highly improper and inappropriate use of the CCWG and it is certainly something that is not going to be viewed favorably in Congress or the NTIA -- nor should it be viewed favorably by anyone in the ICANN community, no matter what "tribe" you are affiliated with. Greg On Fri, Nov 6, 2015 at 2:51 PM, Edward Morris <egmorris1@toast.net> wrote:
Well put. I completely agree with Robin on this both in terms of substance and of procedure. We've already seen efforts to bring in content regulation through the back door, most recently in Dublin by some of our friends and colleagues. We need to make it plain, transparent and clear that content regulation is not part of ICANN's remit. The current language does so. The proposed change does not.
Best,
Ed
Sent from my iPhone
On Nov 6, 2015, at 7:38 PM, Robin Gross <robin@ipjustice.org> wrote:
Unfortunately, this deletion would represent a big step backwards from consensus. There were quite a few public comments from a wide range of stakeholders that made note of the importance of the phrase in the mission to limit ICANN from regulating in this matter, so deleting it now would cause considerable disturbance to the consensus and go against public comment. I appreciate the pressure to appease the IPC, but this would be unfair to the many public commenters and other participants who have been relying on this critical language being included in the final text.
Thanks, Robin
On Nov 6, 2015, at 9:30 AM, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep? I could certainly make the argument, based on the proposed mission statement, that ICANN has no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly. (Please note, ICANN’s Bylaws currently authorize ICANN to enter into contracts. See Article XV, Section 1).
Should we discuss this approach? The report language on ICANN’s Mission Statement, reflecting the recent changes to address IAB/IETF concerns, would then read:
The Mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems in the ways described below. Specifically, ICANN:
1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies:
• For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and
• That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems.
2. Coordinates the operation and evolution of the DNS root name server system. In this role, ICANN’s Mission is to [to be provided by root server operators].
3. Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.
4. Collaborates with other bodies as appropriate to publish core registries needed for the functioning of the Internet. In this role, with respect to protocol ports and parameters, ICANN's Mission is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations, such as the Internet Engineering Task Force.
ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367 */* *neustar.biz* <http://www.neustar.biz/> _______________________________________________ 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
On 06/11/2015 22:22, Greg Shatan wrote:
We have still not resolved the issue of what is meant by a "service," an ambiguous term that apparently may have a meaning specific to Telcoms professionals but not one that is broadly understood or tends to exclude other meanings in the context of a corporate Bylaw. I am confident that our lawyers (even though one is a Tech Transactions lawyer not unlike myself) will not grasp what Malcolm thinks this conveys. In any event, one of the rules of good legal drafting is to avoid jargon or terms of art specific to an industry, except in a document of such narrow application that it will be instantly obvious what the meaning is.
As I have said, the word "service" is used, without complaint, as a general descriptor for such things as web servers, mail servers and so forth*, not only in the legislation of the European Union, but also if I am not mistaken in your own Federal law. But this is not reserved to lawyers alone: these services are also so known as "services" amongst the technical community. So I do not agree tha the terms is "ambiguous", even if you are personally unfamiliar with it. If we remove from the ICANN Bylaws every term of art or jargon specific to the Internet industry it will certainly be a shorter document, but unfortunately quite unintelligible. When it comes to ICANN, the use of a certain number of terms for central features of the Internet is inevitable I'm afraid. Kind Regards, Malcolm. * to be utterly pedantic, the service is what the web server does. -- 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, As a preamble, I want to mention that content, whatever sluices between edge nodes (users at their computers, or watches) and clusters of ad revenue sharing content delivery engines, is not our policing problem. The resolutions of names to addresses, is however. If I may, I'd like to pick a nit. You wrote: "no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly." First, could we narrow what it is we're not regulating, ISPs do a lot of things, but one thing they can do is operate recursive resolvers, so in particular, the "no authority to regulate" means no means to ensure continuous correct resolution of domain names by ISPs. More generally, it means that any protocol designed to provide end-to-end semantics, such as digital signature or cookie policy (something I worked on in the W3C's P3P work early this century) guarantees of continuous, correctness can be exploited as a business model, and those business models that falsify DNS lookups have no liabilities, no costs, for doing so. Another means of describing such a system is one with "a man or woman in the middle", generally not a helpful man or woman. More of a pickpocket or cutpurse. Next, still nit picking, I want to point out that currently the provisioning of third-parties with registry and registrar data is not unconditional. When I ask for access to VGRS's bulk data I have to fill out more then just a pro forma, when I ask for access to GoDaddy's bulk data again there are questions to answer and promises to make. I think just about everyone (contracted parties) has a TERMS OF USE paragraph in their WHOIS boilerplate. So, we currently have ICANN using "its authority over registries and registrars to do" something limiting third-party access to and republication of data held by contracted parties, and we have at least a history, in SSAC032 and its prior work product on synthetic return. Both are obsoleted by the sweeping prohibition language. If I may, I suggest replacing sweeping language with specific language, or less non-specific language. Eric Brunner-Williams Eugene, Oregon On 11/6/15 9:30 AM, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep? I could certainly make the argument, based on the proposed mission statement, that ICANN has no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly. (Please note, ICANN’s Bylaws currently authorize ICANN to enter into contracts. See Article XV, Section 1).
Should we discuss this approach? The report language on ICANN’s Mission Statement, reflecting the recent changes to address IAB/IETF concerns, would then read:
The Mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems in the ways described below. Specifically, ICANN:
1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies:
•For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and
•That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems.
2. Coordinates the operation and evolution of the DNS root name server system. In this role, ICANN’s Mission is to [to be provided by root server operators].
3. Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.
4. Collaborates with other bodies as appropriate to publish core registries needed for the functioning of the Internet. In this role, with respect to protocol ports and parameters, ICANN's Mission is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations, such as the Internet Engineering Task Force.
ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367 */**neustar.biz* <http://www.neustar.biz>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I agree with Eric's closing statement: "If I may, I suggest replacing sweeping language with specific language, or less non-specific language." The "nits" that Eric picks show the problem with using the term "regulation," since much of what ICANN does can be deemed "regulation," depending on how you (reasonably) define it. I have no problem with trying to "appease" ISPs, as long as it doesn't have negative consequences to ICANN's mission. (I do have big problems with calling any of what we're trying to do "appeasement." This is multistakeholder give-and-take, and in a sense everyone's looking for "appeasement," which is just a nasty way of saying that an outcome has been achieved that meets the concerns of stakeholder group(s).) Greg On Fri, Nov 6, 2015 at 5:09 PM, Eric Brunner-Williams < ebw@abenaki.wabanaki.net> wrote:
Becky,
As a preamble, I want to mention that content, whatever sluices between edge nodes (users at their computers, or watches) and clusters of ad revenue sharing content delivery engines, is not our policing problem. The resolutions of names to addresses, is however.
If I may, I'd like to pick a nit. You wrote: "no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly."
First, could we narrow what it is we're not regulating, ISPs do a lot of things, but one thing they can do is operate recursive resolvers, so in particular, the "no authority to regulate" means no means to ensure continuous correct resolution of domain names by ISPs.
More generally, it means that any protocol designed to provide end-to-end semantics, such as digital signature or cookie policy (something I worked on in the W3C's P3P work early this century) guarantees of continuous, correctness can be exploited as a business model, and those business models that falsify DNS lookups have no liabilities, no costs, for doing so. Another means of describing such a system is one with "a man or woman in the middle", generally not a helpful man or woman. More of a pickpocket or cutpurse.
Next, still nit picking, I want to point out that currently the provisioning of third-parties with registry and registrar data is not unconditional. When I ask for access to VGRS's bulk data I have to fill out more then just a pro forma, when I ask for access to GoDaddy's bulk data again there are questions to answer and promises to make. I think just about everyone (contracted parties) has a TERMS OF USE paragraph in their WHOIS boilerplate.
So, we currently have ICANN using "its authority over registries and registrars to do" something limiting third-party access to and republication of data held by contracted parties, and we have at least a history, in SSAC032 and its prior work product on synthetic return.
Both are obsoleted by the sweeping prohibition language.
If I may, I suggest replacing sweeping language with specific language, or less non-specific language.
Eric Brunner-Williams Eugene, Oregon
On 11/6/15 9:30 AM, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep? I could certainly make the argument, based on the proposed mission statement, that ICANN has no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly. (Please note, ICANN’s Bylaws currently authorize ICANN to enter into contracts. See Article XV, Section 1).
Should we discuss this approach? The report language on ICANN’s Mission Statement, reflecting the recent changes to address IAB/IETF concerns, would then read:
The Mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems in the ways described below. Specifically, ICANN:
1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies:
• For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and
• That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems.
2. Coordinates the operation and evolution of the DNS root name server system. In this role, ICANN’s Mission is to [to be provided by root server operators].
3. Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.
4. Collaborates with other bodies as appropriate to publish core registries needed for the functioning of the Internet. In this role, with respect to protocol ports and parameters, ICANN's Mission is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations, such as the Internet Engineering Task Force.
ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367 */* *neustar.biz* <http://www.neustar.biz>
_______________________________________________ Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://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
Hi, Just catching up after being with email. Happy to see the sentences removed. avri On 06-Nov-15 14:30, Burr, Becky wrote:
All: At the risk of causing a riot, I confess that am getting increasingly concerned that we are confusing ourselves (and possibly the bylaws) by trying to include and explain the prohibition on regulation of services that use the Internet’s unique identifiers or the content that such services carry or provide. Perhaps we would be better off relying on a clear Mission statement and enhanced accountability mechanisms to prevent mission creep? I could certainly make the argument, based on the proposed mission statement, that ICANN has no authority to regulate ISPs, or to use its authority over registries and registrars to do so indirectly. (Please note, ICANN’s Bylaws currently authorize ICANN to enter into contracts. See Article XV, Section 1).
Should we discuss this approach? The report language on ICANN’s Mission Statement, reflecting the recent changes to address IAB/IETF concerns, would then read:
The Mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems in the ways described below. Specifically, ICANN:
1. Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS"). In this role, ICANN’s Mission is to coordinate the development and implementation of policies:
•For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and
•That are developed through a bottom-up, consensus-based multi- stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems.
2. Coordinates the operation and evolution of the DNS root name server system. In this role, ICANN’s Mission is to [to be provided by root server operators].
3. Coordinates the allocation and assignment at the top-most level of Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s Mission is described in the ASO MoU between ICANN and RIRs.
4. Collaborates with other bodies as appropriate to publish core registries needed for the functioning of the Internet. In this role, with respect to protocol ports and parameters, ICANN's Mission is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations, such as the Internet Engineering Task Force.
ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not regulate services that use the Internet's unique identifiers, or the content that such services carry or provide. ICANN shall have the ability to enforce agreements with contracted parties, subject to established means of community input on those agreements and reasonable checks and balances on its ability to impose obligations exceeding ICANN’s Mission on registries and registrars.
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367 */**neustar.biz* <http://www.neustar.biz>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
participants (9)
-
arun.sukumar＠orfonline.org -
Avri Doria -
Burr, Becky -
Edward Morris -
Eric Brunner-Williams -
Greg Shatan -
Malcolm Hutty -
Paul Rosenzweig -
Robin Gross