Re: [CCWG-ACCT] Board comments on the Mission statement
The problem with the current "services clause" - "ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." - is that it doesn't mean what it says; because registrars/registries are "services that use the Internet's unique identifiers," and because we recognize that ICANN can and does "impose regulations" on them ... I had proposed a revised "sevices clause" : ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication. A couple of people raised a problem: What about the obligation that ICANN already imposes, through the RAA, on domain holders to provide accurate WHOIS data? Am I suggesting they can't do that? No, I'm not. I suspect there's agreement that ICANN should be permitted to do this - but why? Where does ICANN's authority to impose these obligations on name holders (but not others) come from? It comes, n my opinion, from its ability to implement consensus policies reasonably necessary to insure the security/stability of the DNS, developed by consensus. ICANN can impose these obligations on the holder of the davidpost.com domain because the WHOIS policy is one for which "uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and was developed through a bottomup, consensus-based multi-stakeholder process." As I've said before, I think this is already captured in the Mission Statement; but since others think we should have an additional clarifying prohibition, it could read: "ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems." David
From: David Post <<mailto:david.g.post@gmail.com>david.g.post@gmail.com> Date: Thursday, November 19, 2015 at 4:39 PM To: Bruce Tonkin <<mailto:Bruce.Tonkin@melbourneit.com.au>Bruce.Tonkin@melbourneit.com.au> Cc: Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Bruce
One question: The Board suggests that if language i adopted that says "ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." there might be some existing registry agreements that would be "out of compliance with ICANN's responsibilities." I'd be curious to know what the Board is concerned with there - what parts of which registry agreements might be affected (and made non-compliant) by this language?
With respect to that same "regulations on services" language, the Board says that it is "unclear," and asks for "some examples of what the CCWG believes that ICANN should and should not be able to do."
I agree that the "services" language isn't clear at the moment. Here's my attempt to capture the point that I think is being made: ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
I think it's pretty straightforward. I use a domain name (davidpost.com) for Internet communication. The idea -- and I think pretty much everyone agrees with this? - is that ICANN can't impose any obligations on me that affect how I operate the site, what content I host or don't host, what goods or services I can or cannot offer, what billing system I use for those goods and services, what anti-virus software I install, ... It can't do that directly (by imposing some contract terms on me itself) or indirectly (by getting 3d parties like the registries or registrars to impose the obligations on me).
Registries and registrars, of course, are not entities "whose only connection to the DNS is that they use a domain name for Internet communication," so this clause shouldn't affect ICANN's ability to impose obligations on them (which remains limited by other portions of the Mission Statement).
David
David
At 02:12 AM 11/19/2015, Bruce Tonkin wrote:
Hello All,
The Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015.
The Board information call today considered the changes to the mission statement identified in that update.
Attached is the Board's preliminary comments on the mission statement part of the Dublin update report. As we review the remainder of that Update, we'll send through additional comments.
Regards,
Bruce Tonkin
ICANN Board Liaison to the CCWG
_______________________________________________ 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
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com ******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
As stated in the provision, a "service" for the purpose of this clause is "any software process that accepts connections for the Internet) that use the Internet's unique identifiers." As such, it is clearly incorrect to say that "registrars/registries" are "services that use the Internet's unique identifiers."" Examples of such "services" include "web services," which are defined (for example) by W3C as: "a software system designed to support interoperable machine-to-machine interaction over a network." http://www.w3.org/TR/2004/NOTE-ws-gloss-20040211/#webservice. Another example of a "service" would be "mail services," defined (for example) by Apple as follows: Mail service in Mac OS X Server allows network users to send and receive mail over your network or across the Internet. Mail service sends and receives mail using the following standard Internet mail protocols: - Simple Mail Transfer Protocol (SMTP) - Internet Message Access Protocol (IMAP) - Post Office Protocol (POP). A standard mail client setup uses SMTP to send outgoing mail and POP and IMAP to receive incoming mail. Mac OS X Server includes an SMTP service and a combined POP and IMAP service. Mail service also uses a Domain Name System (DNS) service to determine the destination IP address of outgoing mail. https://manuals.info.apple.com/MANUALS/1000/MA1179/en_US/MailServicesAdmin_v... Hope that helps. Greg On Fri, Nov 20, 2015 at 11:08 AM, David Post <david.g.post@gmail.com> wrote:
The problem with the current "services clause" - “ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." - is that it doesn't mean what it says; because registrars/registries are "services that use the Internet's unique identifiers," and because we recognize that ICANN can and does "impose regulations" on them ...
I had proposed a revised "sevices clause" : ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
A couple of people raised a problem: What about the obligation that ICANN already imposes, through the RAA, on domain holders to provide accurate WHOIS data? Am I suggesting they can't do that?
No, I'm not. I suspect there's agreement that ICANN should be permitted to do this - but why? Where does ICANN's authority to impose *these *obligations on name holders (but not others) come from? It comes, n my opinion, from its ability to implement consensus policies reasonably necessary to insure the security/stability of the DNS, developed by consensus. ICANN can impose these obligations on the holder of the davidpost.com domain because the WHOIS policy is one for which "uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and was developed through a bottomup, consensus-based multi-stakeholder process."
As I've said before, I think this is already captured in the Mission Statement; but since others think we should have an additional clarifying prohibition, it could read:
"ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems."
David
From: David Post <david.g.post@gmail.com > Date: Thursday, November 19, 2015 at 4:39 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: Accountability Community < accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Bruce
One question: The Board suggests that if language i adopted that says “ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." there might be some existing registry agreements that would be "out of compliance with ICANN's responsibilities." I'd be curious to know what the Board is concerned with there - what parts of which registry agreements might be affected (and made non-compliant) by this language?
With respect to that same "regulations on services" language, the Board says that it is "unclear," and asks for "some examples of what the CCWG believes that ICANN should and should not be able to do."
I agree that the "services" language isn't clear at the moment. Here's my attempt to capture the point that I think is being made: ICANN should not be allowed to impose -- directly *or indirectly*, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
I think it's pretty straightforward. I use a domain name (davidpost.com) for Internet communication. The idea -- and I think pretty much everyone agrees with this? - is that ICANN can't impose any obligations on me that affect how I operate the site, what content I host or don't host, what goods or services I can or cannot offer, what billing system I use for those goods and services, what anti-virus software I install, ... It can't do that directly (by imposing some contract terms on me itself) or indirectly (by getting 3d parties like the registries or registrars to impose the obligations on me).
Registries and registrars, of course, are not entities "whose only connection to the DNS is that they use a domain name for Internet communication," so this clause shouldn't affect ICANN's ability to impose obligations on them (which remains limited by other portions of the Mission Statement).
David
David
At 02:12 AM 11/19/2015, Bruce Tonkin wrote:
Hello All,
The Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015.
The Board information call today considered the changes to the mission statement identified in that update.
Attached is the Board's preliminary comments on the mission statement part of the Dublin update report. As we review the remainder of that Update, we'll send through additional comments.
Regards,
Bruce Tonkin
ICANN Board Liaison to the CCWG
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com
*******************************
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com
******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com
*******************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
As stated in the provision, a "service" for the purpose of this clause is "any software process that accepts connections for the Internet) that use the Internet's unique identifiers." As such, it is clearly incorrect to say that "registrars/registries" are "services that use the Internet's unique identifiers."" Greg: I don’t see how it is “clearly incorrect.” Are you saying that registry and registrar services don’t use IP addresses or domains? THAT is clearly incorrect. Are you saying they are not services? THAT is clearly incorrect. So what would this prohibit ICANN from doing? ICANN board comments asks for such specifics and it is a legitimate request. David’s formulation of the prohibition is much clearer, in that it accurately reflects the intent of the prohibition. Your reversion to very specific technical descriptions, raises the concern that ICANN could regulate the business without necessarily regulating the technology. If that is your intent, please make it clear. --MM "ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems." David
On Fri, Nov 20, 2015 at 12:16 PM, Mueller, Milton L <milton@gatech.edu> wrote:
As stated in the provision, a "service" for the purpose of this clause is "any software process that accepts connections for the Internet) that use the Internet's unique identifiers." As such, it is clearly incorrect to say that "registrars/registries" are "services that use the Internet's unique identifiers.""
Greg: I don’t see how it is “clearly incorrect.” Are you saying that registry and registrar services don’t use IP addresses or domains?
GS: I am saying that the type of "use" referred to here is not the use in the sense of owning a domain name or typing in a domain name, whether its being done by registry operators, registrars or my Aunt Tillie. They may initiate a chain of events that leads to a software process "using" an IP address or domain name, but initiating that chain of events is not using a unique identifier, any more than I use a carburetor when I drive a car.
THAT is clearly incorrect. Are you saying they are not services?
GS: In the great wide world, "services' can refer to operations that are carried out by "service providers," and more loosely, even to those "service providers" themselves. In that context, sure, they are services, and my law firm is a service, and the nail salon downstairs is a service. What I'm saying is that, in this context, in this provision, "service" does not refer to businesses that provide services, and not even to the service that the service provider provides directly to another business or individual. In this context, service refers to processes such as web services (as defined in my prior email) and mail services (as defined in my prior email).
THAT is clearly incorrect. So what would this prohibit ICANN from doing? ICANN board comments asks for such specifics and it is a legitimate request.
David’s formulation of the prohibition is much clearer, in that it accurately reflects the intent of the prohibition. Your reversion to very specific technical descriptions, raises the concern that ICANN could regulate the business without necessarily regulating the technology. If that is your intent, please make it clear.
GS: I disagree (not surprisingly) with your characterization of David's formulation. As for my intent, I don't see how you derive what you've said from what I've said. We are dealing with a technical process, so some "reversion" to technical descriptions is inevitable as we explore meaning, even if what we want is a more high-level definition that is as technology neutral as possible.
--MM
"ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems."
David
MM: Are you saying that registry and registrar services don’t use IP addresses or domains? GS: I am saying that the type of "use" referred to here is not the use in the sense of owning a domain name or typing in a domain name, whether its being done by registry operators, registrars or my Aunt Tillie. They may initiate a chain of events that leads to a software process "using" an IP address or domain name, but initiating that chain of events is not using a unique identifier, any more than I use a carburetor when I drive a car. MM: This is a weird and idiosyncratic application of the word “use.” You do use a carburetor when you drive a car. No one else uses the term use in the way you are doing here. THAT is clearly incorrect. Are you saying they are not services? GS: In the great wide world, "services' can refer to operations that are carried out by "service providers," and more loosely, even to those "service providers" themselves. In that context, sure, they are services, and my law firm is a service, and the nail salon downstairs is a service. What I'm saying is that, in this context, in this provision, "service" does not refer to businesses that provide services, and not even to the service that the service provider provides directly to another business or individual. In this context, service refers to processes such as web services (as defined in my prior email) and mail services (as defined in my prior email). MM: Again, a very idiosyncratic use of the word. In fact, it is the regulation of service providers and even people that we are concerned about, not regulation of the technical processes.
On Fri, Nov 20, 2015 at 08:05:04PM +0000, Mueller, Milton L wrote:
In fact, it is the regulation of service providers and even people that we are concerned about, not regulation of the technical processes.
Wait, I thought we were talking about regulation of the _service_ and not the people offering the service. If not, we have a much bigger problem, becuase the same organization might offer the service in one role and be an ICANN-contracted party in another. Are you saying that web hosters who are also ICANN accredited registrars ought to have their web-hosting business subject to different rules than those who are not accredited registrars? (I assume not, but that is the effect of making this about the service providers and not the service offered.) Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
+1 (sic) CW On 20 Nov 2015, at 21:33, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Fri, Nov 20, 2015 at 08:05:04PM +0000, Mueller, Milton L wrote:
In fact, it is the regulation of service providers and even people that we are concerned about, not regulation of the technical processes.
Wait, I thought we were talking about regulation of the _service_ and not the people offering the service. If not, we have a much bigger problem, becuase the same organization might offer the service in one role and be an ICANN-contracted party in another. Are you saying that web hosters who are also ICANN accredited registrars ought to have their web-hosting business subject to different rules than those who are not accredited registrars? (I assume not, but that is the effect of making this about the service providers and not the service offered.)
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Agree with Andrew on this one 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 11/20/15, 3:33 PM, "Andrew Sullivan" <ajs@anvilwalrusden.com> wrote:
On Fri, Nov 20, 2015 at 08:05:04PM +0000, Mueller, Milton L wrote:
In fact, it is the regulation of service providers and even people that we are concerned about, not regulation of the technical processes.
Wait, I thought we were talking about regulation of the _service_ and not the people offering the service. If not, we have a much bigger problem, becuase the same organization might offer the service in one role and be an ICANN-contracted party in another. Are you saying that web hosters who are also ICANN accredited registrars ought to have their web-hosting business subject to different rules than those who are not accredited registrars? (I assume not, but that is the effect of making this about the service providers and not the service offered.)
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ listinfo_accountability-2Dcross-2Dcommunity&d=CwICAg&c=MOptNlVtIETeDALC_lU Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=FOhDXGrpxArWls0zUXSbXz GIcvFmgYSiq8HFvGYd0y4&s=POOEopw8tx_tUmuaDQY-wdMrha1irqhsaG3GFjg6iFU&e=
No, I am talking about the use of ICANN contracts to regulate internet users
-----Original Message----- Wait, I thought we were talking about regulation of the _service_ and not the people offering the service. If not, we have a much bigger problem, becuase the same organization might offer the service in one role and be an ICANN-contracted party in another. Are you saying that web hosters who are also ICANN accredited registrars ought to have their web-hosting business subject to different rules than those who are not accredited registrars? (I assume not, but that is the effect of making this about the service providers and not the service offered.)
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Fri, Nov 20, 2015 at 10:00:34PM +0000, Mueller, Milton L wrote:
No, I am talking about the use of ICANN contracts to regulate internet users
I'm completely mystified, then, because I had no idea that anyone had ever tried to get ICANN to regulate _users_. I don't even know what that would mean or how ICANN could do it. Could you say more? Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Andrew Have you ever heard of the Uniform Domain Name Dispute Resolution Policy? The UDRP regulates users more than registrars. This is requirement of ICANN for all registrars, and its purpose is to commit all users to agree to resolve domain name - trademark disputes via their arbitration process. Arguably, this the UDRP is ok because it deals with domain names, but similar things could be put into the contracts that, to use a deliberately silly and therefore non-distracting example, required people to wear blue shirts on Thursdays, on pain of losing their domains. Are you de-mystified now? --MM
-----Original Message-----
I'm completely mystified, then, because I had no idea that anyone had ever tried to get ICANN to regulate _users_. I don't even know what that would mean or how ICANN could do it. Could you say more?
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross- Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Fri, Nov 20, 2015 at 10:07:33PM +0000, Mueller, Milton L wrote:
Have you ever heard of the Uniform Domain Name Dispute Resolution Policy? The UDRP regulates users more than registrars.
The distinction I'm trying to maintain and that you keep running over is the difference between regulating a particular action and regulating users as such. The UDRP regulates a specific thing -- a particular registration under dispute -- and not the person who has made such a registration.
ok because it deals with domain names, but similar things could be put into the contracts that, to use a deliberately silly and therefore non-distracting example, required people to wear blue shirts on Thursdays, on pain of losing their domains.
This obliterates the distinction again. Presumably, the blue-shirt-wearing would have to bet tied to one or more specific domains, not any domain name registration the person happens to hold (since some of those domain names aren't even subjet to ICANN regulation. I'm a registrant in .ca, for instance, and I shouldn't expect the terms I'm under with ICANN for anvilwalrusden.com to affect my agreement with CIRA for crankycanuck.ca). So, first, can we agree that we're only talking about regulating specific actions (blue shirt wearing or not) and not people (all non-blue-shirt-wearers)? I agree it's an example of a sort of tying we don't want: a rule on behaviour unrelated to anything to do with the domain name itself. But there's clearly another group of behaviours that are relevant to domain names in that they're enabled by such domain names. I think you and I both want those not to be regulated, but I don't see how to state it such that we don't also accidentally scoop up whois policies. I thought that's what we were talking about, until we started talking about regulating people. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
On 20 Nov 2015, at 17:07, Mueller, Milton L <milton@gatech.edu> wrote:
Arguably, this the UDRP is ok because it deals with domain names, but similar things could be put into the contracts that, to use a deliberately silly and therefore non-distracting example, required people to wear blue shirts on Thursdays, on pain of losing their domains.
Milton, This clause would not prevent ICANN from adopting a policy that all registrants within a particular gTLD (or all of them) must wear blue shirts on Thursdays, nor from enforcing such a prohibition through the RA/RAA. I would prefer a clause that did prohibit such a policy, but I cannot find a form of words to which others will agree; every effort so far has been shot down as allegedly too likely to prohibit things that I agree ICANN should do (like WHOIS, UDRP, or regulating the registration process). We therefore have a compromise text. This is not comprehensive in prohibiting to ICANN the full range of regulatory behaviour that I think it should really be restrained from engaging in, but it does deal with the most "high risk" area: attempting to regulate what is "done on the Internet", as in, what is done by software processes that accept Internet connections (or the content they process). I could live with that, in default of something better. Malcolm.
Malcolm, Do we need an additional clause that prohibits the "blue shirt" policy? I would contend that the basic statement about ICANN's mission is sufficient to prohibit such a policy. Greg On Fri, Nov 20, 2015 at 8:29 PM, Malcolm Hutty <malcolm@linx.net> wrote:
On 20 Nov 2015, at 17:07, Mueller, Milton L <milton@gatech.edu> wrote:
Arguably, this the UDRP is ok because it deals with domain names, but similar things could be put into the contracts that, to use a deliberately silly and therefore non-distracting example, required people to wear blue shirts on Thursdays, on pain of losing their domains.
Milton,
This clause would not prevent ICANN from adopting a policy that all registrants within a particular gTLD (or all of them) must wear blue shirts on Thursdays, nor from enforcing such a prohibition through the RA/RAA.
I would prefer a clause that did prohibit such a policy, but I cannot find a form of words to which others will agree; every effort so far has been shot down as allegedly too likely to prohibit things that I agree ICANN should do (like WHOIS, UDRP, or regulating the registration process).
We therefore have a compromise text. This is not comprehensive in prohibiting to ICANN the full range of regulatory behaviour that I think it should really be restrained from engaging in, but it does deal with the most "high risk" area: attempting to regulate what is "done on the Internet", as in, what is done by software processes that accept Internet connections (or the content they process).
I could live with that, in default of something better.
Malcolm.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Fri, Nov 20, 2015 at 3:05 PM, Mueller, Milton L <milton@gatech.edu> wrote:
MM: Are you saying that registry and registrar services don’t use IP addresses or domains?
GS: I am saying that the type of "use" referred to here is not the use in the sense of owning a domain name or typing in a domain name, whether its being done by registry operators, registrars or my Aunt Tillie. They may initiate a chain of events that leads to a software process "using" an IP address or domain name, but initiating that chain of events is not using a unique identifier, any more than I use a carburetor when I drive a car.
MM: This is a weird and idiosyncratic application of the word “use.” You do use a carburetor when you drive a car. No one else uses the term use in the way you are doing here.
GS: I don't think my definition is at all "weird and idiosyncratic." Rather, I think it is rational and limited to what is directly used by the car's end-user (the driver). I certainly use the accelerator, brake, steering wheel, gear shift, etc. You seem to want an extremely broad and attenuated definition of "use" that sucks in every possible downstream and upstream action, process or mechanism that's involved, directly or indirectly, in the service. I suppose, as I type this, I am "using" the Con Ed electric plant on 14th Street, since it's supplying the electricity I am "using" to power this computer. A definition like that is so broad as to be meaningless -- but it is certainly helpful to those that would "use" this provision to declare things they disapprove of "out of Mission."
THAT is clearly incorrect. Are you saying they are not services?
GS: In the great wide world, "services' can refer to operations that are carried out by "service providers," and more loosely, even to those "service providers" themselves. In that context, sure, they are services, and my law firm is a service, and the nail salon downstairs is a service. What I'm saying is that, in this context, in this provision, "service" does not refer to businesses that provide services, and not even to the service that the service provider provides directly to another business or individual. In this context, service refers to processes such as web services (as defined in my prior email) and mail services (as defined in my prior email).
MM: Again, a very idiosyncratic use of the word. In fact, it is the regulation of service providers and even people that we are concerned about, not regulation of the technical processes.
GS: Again, not idiosyncratic at all -- web services and mail services are the furthest thing from idiosyncratic -- they are the "meat and potatoes" of services that use the Internet. You are focusing on people and entities, not on the Internet itself; that is a mistaken focus.
Greg, Lets keep the notion of "use" to resolution, forwards and backwards, and what necessarily rides on top of resolution. In layers, though resolution usually takes place over transport, so {udp|tcp}/ip, (in English, that is UDP or TCP over IP), what we really mean is a wart off of routing, a one time look up before routing. So if (and only if, according to my prior "what we mean by ..." note), an instance of communication involves routing made by a device participating in the Default Free Zone, then there is the "use". We don't know what is going on below the network layer, so whatever we mean by "use" and "resolution" does not imply "regulation" (or awareness) of link or physical layers, let alone the electrical (though ip over consumer power has been done). Cheers, Eric On 11/21/15 10:30 PM, Greg Shatan wrote:
I suppose, as I type this, I am "using" the Con Ed electric plant on 14th Street, since it's supplying the electricity I am "using" to power this computer
Hi Eric, On Sun, Nov 22, 2015 at 12:01:27AM -0800, Eric Brunner-Williams wrote:
what necessarily rides on top of resolution. In layers, though resolution usually takes place over transport, so {udp|tcp}/ip, (in English, that is UDP or TCP over IP), what we really mean is a wart off of routing, a one time look up before routing.
The problem, though, is that the DNS lookups happen in the application layer, just like http and everything else, no? Moreover,
instance of communication involves routing made by a device participating in
most web servers are not themselves doing any routing at all. They're using routes to send packets or complete datagrams, but are often themselves ignorant of routing (indeed, often that ignorance is exploited to permit anycast). So I doubt this gets us closer. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Good evening: This debate is becoming inconclusive to the point of being undignified. At the very least it is postponing agreement in relation to whatever transition deadlines one chooses to respect. Why don't we just cleave to the status quo? After all, ICANN has been in business for 15+ years. Has the definition of "services" been an issue in the past? Answers to requests for examples of the problems that would be created/resolved by this or that definition of "services", have not been forthcoming. So what? (a) there is a large body of documented policy in many countries regarding definitions of communications services, irrespective of CCWG's opinion. I am not an expert in all that, but I would certainly not venture to propose that an alternative definition arising from our small group would hold sway in ICANN and beyond. (b) Insofar as there are few bottom lines in this discussion, I suggest that they do not need to be resolved before the accountability/transition process is complete: cleave to the status quo. Opinions and economic interests will continue to differ regarding multiple classes of content facilitated or prevented by ICANN and the DNS; irrespective of what is said in the Bylaws or in ICANN contracts. In any event, ICANN has to take into account applicable local law, whether that relates to trademarks, dénominations d'origine, privacy, consumer protection or the practices of regulated sectors, among others. Accordingly, I doubt that the eventual outcome of the current debate about the definition of "services" is really likely to move forward either accountability or the transition. Regards CW On 20 Nov 2015, at 19:54, Greg Shatan <gregshatanipc@gmail.com> wrote:
On Fri, Nov 20, 2015 at 12:16 PM, Mueller, Milton L <milton@gatech.edu> wrote: As stated in the provision, a "service" for the purpose of this clause is "any software process that accepts connections for the Internet) that use the Internet's unique identifiers." As such, it is clearly incorrect to say that "registrars/registries" are "services that use the Internet's unique identifiers.""
Greg: I don’t see how it is “clearly incorrect.” Are you saying that registry and registrar services don’t use IP addresses or domains?
GS: I am saying that the type of "use" referred to here is not the use in the sense of owning a domain name or typing in a domain name, whether its being done by registry operators, registrars or my Aunt Tillie. They may initiate a chain of events that leads to a software process "using" an IP address or domain name, but initiating that chain of events is not using a unique identifier, any more than I use a carburetor when I drive a car.
THAT is clearly incorrect. Are you saying they are not services?
GS: In the great wide world, "services' can refer to operations that are carried out by "service providers," and more loosely, even to those "service providers" themselves. In that context, sure, they are services, and my law firm is a service, and the nail salon downstairs is a service. What I'm saying is that, in this context, in this provision, "service" does not refer to businesses that provide services, and not even to the service that the service provider provides directly to another business or individual. In this context, service refers to processes such as web services (as defined in my prior email) and mail services (as defined in my prior email).
THAT is clearly incorrect. So what would this prohibit ICANN from doing? ICANN board comments asks for such specifics and it is a legitimate request.
David’s formulation of the prohibition is much clearer, in that it accurately reflects the intent of the prohibition. Your reversion to very specific technical descriptions, raises the concern that ICANN could regulate the business without necessarily regulating the technology. If that is your intent, please make it clear.
GS: I disagree (not surprisingly) with your characterization of David's formulation. As for my intent, I don't see how you derive what you've said from what I've said. We are dealing with a technical process, so some "reversion" to technical descriptions is inevitable as we explore meaning, even if what we want is a more high-level definition that is as technology neutral as possible.
--MM
"ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems."
David
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On Fri, Nov 20, 2015 at 12:06:38PM -0500, Greg Shatan wrote:
As stated in the provision, a "service" for the purpose of this clause is "any software process that accepts connections for the Internet) that use the Internet's unique identifiers." As such, it is clearly incorrect to say that "registrars/registries" are "services that use the Internet's unique identifiers.""
I'm afraid I disagree. This was the worry I tried to raise when I first suggested that language, and I noted in the chat for the call the other day. Whois (and RDAP when it's deployed) is clearly a software process that accepts connections from the Internet. EPP is also that. So is http(s), which is how most registrars interact with their customers; there are definitely rules about what they have to offer there (e.g. whois data over http -- there are even rules about what such data has to say). There is in fact an argument to be made here. I accept Becky's argument that the futher clarification that ICANN could enter into contracts to support the registration services is enough to counteract all this, but I can see why someone would be worried. This is really why I think the "not a regulator" and "can undertake contracts" sentences, however we write them, are dangerous here. The basic restriction to enumerated powers is already in place, and I think these two sentences are going to be fantastically hard to write correctly for our meaning without causing some sort of side effect. I remain unconvinced they're either necessary or a good idea. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
+1 and I believe we should seriously consider the advice of the guy that has no vested interest in this part of ICANN's mission. avri On 20-Nov-15 12:31, Andrew Sullivan wrote:
On Fri, Nov 20, 2015 at 12:06:38PM -0500, Greg Shatan wrote:
As stated in the provision, a "service" for the purpose of this clause is "any software process that accepts connections for the Internet) that use the Internet's unique identifiers." As such, it is clearly incorrect to say that "registrars/registries" are "services that use the Internet's unique identifiers."" I'm afraid I disagree. This was the worry I tried to raise when I first suggested that language, and I noted in the chat for the call the other day. Whois (and RDAP when it's deployed) is clearly a software process that accepts connections from the Internet. EPP is also that. So is http(s), which is how most registrars interact with their customers; there are definitely rules about what they have to offer there (e.g. whois data over http -- there are even rules about what such data has to say). There is in fact an argument to be made here.
I accept Becky's argument that the futher clarification that ICANN could enter into contracts to support the registration services is enough to counteract all this, but I can see why someone would be worried.
This is really why I think the "not a regulator" and "can undertake contracts" sentences, however we write them, are dangerous here. The basic restriction to enumerated powers is already in place, and I think these two sentences are going to be fantastically hard to write correctly for our meaning without causing some sort of side effect. I remain unconvinced they're either necessary or a good idea.
Best regards,
A
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Andrew, I strongly agree with your concluding statement: This is really why I think the "not a regulator" and "can undertake
contracts" sentences, however we write them, are dangerous here. The basic restriction to enumerated powers is already in place, and I think these two sentences are going to be fantastically hard to write correctly for our meaning without causing some sort of side effect. I remain unconvinced they're either necessary or a good idea.
We are (unfortunately) down that rabbit-hole, and I think further efforts will just dig new tunnels, none of which will lead to daylight. Extracting ourselves entirely from the rabbit hole would be a far, far better thing. Greg On Fri, Nov 20, 2015 at 12:45 PM, Avri Doria <avri@acm.org> wrote:
+1
and I believe we should seriously consider the advice of the guy that has no vested interest in this part of ICANN's mission.
avri
On 20-Nov-15 12:31, Andrew Sullivan wrote:
On Fri, Nov 20, 2015 at 12:06:38PM -0500, Greg Shatan wrote:
As stated in the provision, a "service" for the purpose of this clause is "any software process that accepts connections for the Internet) that use the Internet's unique identifiers." As such, it is clearly incorrect to say that "registrars/registries" are "services that use the Internet's unique identifiers."" I'm afraid I disagree. This was the worry I tried to raise when I first suggested that language, and I noted in the chat for the call the other day. Whois (and RDAP when it's deployed) is clearly a software process that accepts connections from the Internet. EPP is also that. So is http(s), which is how most registrars interact with their customers; there are definitely rules about what they have to offer there (e.g. whois data over http -- there are even rules about what such data has to say). There is in fact an argument to be made here.
I accept Becky's argument that the futher clarification that ICANN could enter into contracts to support the registration services is enough to counteract all this, but I can see why someone would be worried.
This is really why I think the "not a regulator" and "can undertake contracts" sentences, however we write them, are dangerous here. The basic restriction to enumerated powers is already in place, and I think these two sentences are going to be fantastically hard to write correctly for our meaning without causing some sort of side effect. I remain unconvinced they're either necessary or a good idea.
Best regards,
A
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On 20 Nov 2015, at 17:31, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Fri, Nov 20, 2015 at 12:06:38PM -0500, Greg Shatan wrote: As stated in the provision, a "service" for the purpose of this clause is "any software process that accepts connections for the Internet) that use the Internet's unique identifiers." As such, it is clearly incorrect to say that "registrars/registries" are "services that use the Internet's unique identifiers.""
I'm afraid I disagree. This was the worry I tried to raise when I first suggested that language, and I noted in the chat for the call the other day. Whois (and RDAP when it's deployed) is clearly a software process that accepts connections from the Internet. EPP is also that. So is http(s), which is how most registrars interact with their customers; there are definitely rules about what they have to offer there (e.g. whois data over http -- there are even rules about what such data has to say). There is in fact an argument to be made here.
Andrew, You seem confused. Registrar businesses are clearly not services in the defined sense: they are not "software processes that accept connections from the Internet". So an attempt to regulate registrar businesses per se is not prohibited by this clause. WHOIS is indeed such a service. But does placing a requirement on domain registrants that they disclose to their registrar certain identifying information with the intention that it be published in WHOIS constitute "imposing a regulation on the WHOIS service"? I contend that no reasonable person would think so: the registrant is being regulated, certainly, but the connection with the WHOIS service is entirely incidental; it is immaterial whether the publication is made by means of WHOIS, or web, or notices in the New York Times - the point is that registrant information is collected and published for general availability. Let me put this another way. There are only two decision-makers whose interpretation of this clause matters: the ICANN Board, and the IRP. The idea that either of them would deliberately place a tortured interpretation on this clause so as to eliminate the longstanding commitment to the principle that part of ICANN's job is to set rules governing collection and publication of registrant identifying information is ridiculous. Any suggestion that either of these would uphold a complaint that WHOIS policy impermissably conflicts with this clause is entirely fanciful, and cannot be taken seriously. Malcolm.
David: I strongly agree that ICANN's mission is already appropriately limited and scoped in the general Mission Statement, and that the prohibition is not necessary. But assuming we have crossed the Rubicon on the possibility of deleting the whole prohibition, I have a question about your revised language: In your view, does Section 3.18.1 of the RAA regarding obligations of registrars in relation to illegal conduct involving the use of a domain name, fall within ICANN's Mission? If your answer is, "it depends", then please see my comment below. The problem I have with subjecting each and every provision of ICANN's agreements to a threshold test is that it will unclear in many cases whether that test can be met. This is not a feature of ICANN's overreach, but simply the fact that agreements such as the RAA and contain a number of provisions relating to the conduct or activity of third parties, which are a specific implementation of broadly accepted policy. I am very concerned about imposing a detailed litmus test for a set of provisions in agreements, which until now have been regarded as an acceptable implementation of ICANN's Mission. Not every provision of every agreement would have been subjected to the bottom-up consensus-based multistakeholder process, but contractual and commercial certainty is needed to ensure that we are all clear that provisions such as those now in place are not going to be subject to a new vetting process to establish their enforceability. Bradley From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Friday, November 20, 2015 11:09 AM To: Burr, Becky Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement The problem with the current "services clause" - "ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." - is that it doesn't mean what it says; because registrars/registries are "services that use the Internet's unique identifiers," and because we recognize that ICANN can and does "impose regulations" on them ... I had proposed a revised "sevices clause" : ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication. A couple of people raised a problem: What about the obligation that ICANN already imposes, through the RAA, on domain holders to provide accurate WHOIS data? Am I suggesting they can't do that? No, I'm not. I suspect there's agreement that ICANN should be permitted to do this - but why? Where does ICANN's authority to impose these obligations on name holders (but not others) come from? It comes, n my opinion, from its ability to implement consensus policies reasonably necessary to insure the security/stability of the DNS, developed by consensus. ICANN can impose these obligations on the holder of the davidpost.com domain because the WHOIS policy is one for which "uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and was developed through a bottomup, consensus-based multi-stakeholder process." As I've said before, I think this is already captured in the Mission Statement; but since others think we should have an additional clarifying prohibition, it could read: "ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems." David From: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Date: Thursday, November 19, 2015 at 4:39 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Bruce One question: The Board suggests that if language i adopted that says "ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." there might be some existing registry agreements that would be "out of compliance with ICANN's responsibilities." I'd be curious to know what the Board is concerned with there - what parts of which registry agreements might be affected (and made non-compliant) by this language? With respect to that same "regulations on services" language, the Board says that it is "unclear," and asks for "some examples of what the CCWG believes that ICANN should and should not be able to do." I agree that the "services" language isn't clear at the moment. Here's my attempt to capture the point that I think is being made: ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication. I think it's pretty straightforward. I use a domain name (davidpost.com) for Internet communication. The idea -- and I think pretty much everyone agrees with this? - is that ICANN can't impose any obligations on me that affect how I operate the site, what content I host or don't host, what goods or services I can or cannot offer, what billing system I use for those goods and services, what anti-virus software I install, ... It can't do that directly (by imposing some contract terms on me itself) or indirectly (by getting 3d parties like the registries or registrars to impose the obligations on me). Registries and registrars, of course, are not entities "whose only connection to the DNS is that they use a domain name for Internet communication," so this clause shouldn't affect ICANN's ability to impose obligations on them (which remains limited by other portions of the Mission Statement). David David At 02:12 AM 11/19/2015, Bruce Tonkin wrote: Hello All, The Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015. The Board information call today considered the changes to the mission statement identified in that update. Attached is the Board's preliminary comments on the mission statement part of the Dublin update report. As we review the remainder of that Update, we'll send through additional comments. 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Hello David, Isn't your suggestion below somehow implying the same thing as written/suggested in paragraph 1 of the document shared by the board? i.e you don't want ICANN to impose anything that is not policy oriented. One of the things that Paragraph 1 seem to already indicate is that coordination of the DNS will be done based on policies....(and goes further to explain nature of policies). It's like a guy saying he will fly on economy and another person telling the guy not to fly on business/first-class. Thanks. David quote: ""ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems." Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 20 Nov 2015 17:10, "David Post" <david.g.post@gmail.com> wrote:
The problem with the current "services clause" - “ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." - is that it doesn't mean what it says; because registrars/registries are "services that use the Internet's unique identifiers," and because we recognize that ICANN can and does "impose regulations" on them ...
I had proposed a revised "sevices clause" : ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
A couple of people raised a problem: What about the obligation that ICANN already imposes, through the RAA, on domain holders to provide accurate WHOIS data? Am I suggesting they can't do that?
No, I'm not. I suspect there's agreement that ICANN should be permitted to do this - but why? Where does ICANN's authority to impose *these *obligations on name holders (but not others) come from? It comes, n my opinion, from its ability to implement consensus policies reasonably necessary to insure the security/stability of the DNS, developed by consensus. ICANN can impose these obligations on the holder of the davidpost.com domain because the WHOIS policy is one for which "uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and was developed through a bottomup, consensus-based multi-stakeholder process."
As I've said before, I think this is already captured in the Mission Statement; but since others think we should have an additional clarifying prohibition, it could read:
"ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet’s unique names systems."
David
From: David Post <david.g.post@gmail.com > Date: Thursday, November 19, 2015 at 4:39 PM To: Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> Cc: Accountability Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Bruce
One question: The Board suggests that if language i adopted that says “ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." there might be some existing registry agreements that would be "out of compliance with ICANN's responsibilities." I'd be curious to know what the Board is concerned with there - what parts of which registry agreements might be affected (and made non-compliant) by this language?
With respect to that same "regulations on services" language, the Board says that it is "unclear," and asks for "some examples of what the CCWG believes that ICANN should and should not be able to do."
I agree that the "services" language isn't clear at the moment. Here's my attempt to capture the point that I think is being made: ICANN should not be allowed to impose -- directly *or indirectly*, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
I think it's pretty straightforward. I use a domain name (davidpost.com) for Internet communication. The idea -- and I think pretty much everyone agrees with this? - is that ICANN can't impose any obligations on me that affect how I operate the site, what content I host or don't host, what goods or services I can or cannot offer, what billing system I use for those goods and services, what anti-virus software I install, ... It can't do that directly (by imposing some contract terms on me itself) or indirectly (by getting 3d parties like the registries or registrars to impose the obligations on me).
Registries and registrars, of course, are not entities "whose only connection to the DNS is that they use a domain name for Internet communication," so this clause shouldn't affect ICANN's ability to impose obligations on them (which remains limited by other portions of the Mission Statement).
David
David
At 02:12 AM 11/19/2015, Bruce Tonkin wrote:
Hello All,
The Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015.
The Board information call today considered the changes to the mission statement identified in that update.
Attached is the Board's preliminary comments on the mission statement part of the Dublin update report. As we review the remainder of that Update, we'll send through additional comments.
Regards,
Bruce Tonkin
ICANN Board Liaison to the CCWG
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com
*******************************
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com
******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com
*******************************
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On Fri, Nov 20, 2015 at 11:08:58AM -0500, David Post wrote:
I had proposed a revised "sevices clause" : ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
A couple of people raised a problem: What about the obligation that ICANN already imposes, through the RAA, on domain holders to provide accurate WHOIS data? Am I suggesting they can't do that?
I'm sure you're not suggesting that, but that's indeed the apparent effect. And of course, in some registries, ICANN is the enforcer of other terms (because those are the terms under which the top-level domain is delegated from the root, and if the operator refuses to impose those terms then it's possible to appeal to ICANN's compliance department. Note I'm not observing this with approval, but it is a fact.) I'm also a little worried about this "use a domain name for Internet communication". There are two ways to do that. One is to connect to a service, such as a web page. That's what most people on the Internet do, and in that sense more or less everything that connects to the Internet has this connection to the DNS. Another is to register a domain name and offer a service there. I _think_ this is what we're trying to prevent ICANN regulating, but strictly speaking such operators have more than just the "use a domain name for communication" relationship, because they're all operators of DNS zones. Moreover, some such operators we certainly don't want to regulate, but they're clearly registries in some sense as well. For instance, my employer (Dyn) operates dyndns.org and other such services, where people can register they're dynamicly-assigned addresses as hostnames in a public zone. That way you can reach services in your house on your cable modem (for instance). Dyn clearly has a greater connection to the DNS than a simple user of the DNS does, here, but I don't think we want ICANN to be able to regulate such services. Dyn is also a registrar, mostly for convenience, and there's the additional problem of whether we want ICANN to be able to regulate otherwise-unregulable things just because the company or individual happens to fall under an RAA in some other part of its business. The previous concentration on services is therefore better because it specifies the thing ICANN can't regulate, rather than the person or organization. (Of course, the old formulation is bad because it catches too any such things.)
do this - but why? Where does ICANN's authority to impose these obligations on name holders (but not others) come from? It comes, n my opinion, from its ability to implement consensus policies reasonably necessary to insure the security/stability of the DNS, developed by consensus.
I am not sure, but I think I disagree. I think it comes from ICANN's ability to set terms on the names it will delegate from the zone it controls -- in this case, the root zone. In this respect, ICANN is just like any other zone operator. It just so happens that they control a zone in which, ultimately, _everyone_ has dealings with. So their policies need to be very broad. I have policies about what I'll delegate from anvilwalrusden.com, too; they turn out to be very restrictive ("things I operate"), but they're the same kind of thing. And that's ultimately where the problem comes: people have realised that the root is a place of enormous control, and in order to get their pet project imposed on the Internet they're willing to try to use ICANN's control over the root and ignore whatever damage that might do. None of this would be a live problem if ICANN hadn't decided to expand the root and use it as a mechanism to communicate policy (full disclosure: I wouldn't even have a career if they hadn't decided that), but they did. The effort in the "no regulation" sentence is, I think, an effort to put a genie back in the bottle. (The "can write contracts" sentence is, of course, necessary to cut off other side effects of the "no regulation" sentence, and I think the arguments for it would be very weak without the "no regulation" sentence.)
"ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems."
Doesn't this mostly just duplicate the language already in the mission statement? (If it gets us there, I'm not going to object, but it seems strange to write the same things twice.) What about collaborating with anti-abuse people in taking down names that are the source of attacks. Is that an imposition of an obligation on someone whose only connection to the DNS is the use you describe? It's not covered by any of those restrictions, I think. If it _is_ permitted, then we're back to the slippery slope we're trying to avoid. I appreciate very much the effort to solve this, but I'm decreasingly optimistic it's even possible in general language. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Sent from my BlackBerry 10 smartphone. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW. Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Original Message From: Andrew Sullivan Sent: Friday, November 20, 2015 12:58 PM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] what ICANN can't regulate (was Re: Board comments on the Mission statement) On Fri, Nov 20, 2015 at 11:08:58AM -0500, David Post wrote:
I had proposed a revised "sevices clause" : ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
A couple of people raised a problem: What about the obligation that ICANN already imposes, through the RAA, on domain holders to provide accurate WHOIS data? Am I suggesting they can't do that?
I'm sure you're not suggesting that, but that's indeed the apparent effect. And of course, in some registries, ICANN is the enforcer of other terms (because those are the terms under which the top-level domain is delegated from the root, and if the operator refuses to impose those terms then it's possible to appeal to ICANN's compliance department. Note I'm not observing this with approval, but it is a fact.) I'm also a little worried about this "use a domain name for Internet communication". There are two ways to do that. One is to connect to a service, such as a web page. That's what most people on the Internet do, and in that sense more or less everything that connects to the Internet has this connection to the DNS. Another is to register a domain name and offer a service there. I _think_ this is what we're trying to prevent ICANN regulating, but strictly speaking such operators have more than just the "use a domain name for communication" relationship, because they're all operators of DNS zones. Moreover, some such operators we certainly don't want to regulate, but they're clearly registries in some sense as well. For instance, my employer (Dyn) operates dyndns.org and other such services, where people can register they're dynamicly-assigned addresses as hostnames in a public zone. That way you can reach services in your house on your cable modem (for instance). Dyn clearly has a greater connection to the DNS than a simple user of the DNS does, here, but I don't think we want ICANN to be able to regulate such services. Dyn is also a registrar, mostly for convenience, and there's the additional problem of whether we want ICANN to be able to regulate otherwise-unregulable things just because the company or individual happens to fall under an RAA in some other part of its business. The previous concentration on services is therefore better because it specifies the thing ICANN can't regulate, rather than the person or organization. (Of course, the old formulation is bad because it catches too any such things.)
do this - but why? Where does ICANN's authority to impose these obligations on name holders (but not others) come from? It comes, n my opinion, from its ability to implement consensus policies reasonably necessary to insure the security/stability of the DNS, developed by consensus.
I am not sure, but I think I disagree. I think it comes from ICANN's ability to set terms on the names it will delegate from the zone it controls -- in this case, the root zone. In this respect, ICANN is just like any other zone operator. It just so happens that they control a zone in which, ultimately, _everyone_ has dealings with. So their policies need to be very broad. I have policies about what I'll delegate from anvilwalrusden.com, too; they turn out to be very restrictive ("things I operate"), but they're the same kind of thing. And that's ultimately where the problem comes: people have realised that the root is a place of enormous control, and in order to get their pet project imposed on the Internet they're willing to try to use ICANN's control over the root and ignore whatever damage that might do. None of this would be a live problem if ICANN hadn't decided to expand the root and use it as a mechanism to communicate policy (full disclosure: I wouldn't even have a career if they hadn't decided that), but they did. The effort in the "no regulation" sentence is, I think, an effort to put a genie back in the bottle. (The "can write contracts" sentence is, of course, necessary to cut off other side effects of the "no regulation" sentence, and I think the arguments for it would be very weak without the "no regulation" sentence.)
"ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems."
Doesn't this mostly just duplicate the language already in the mission statement? (If it gets us there, I'm not going to object, but it seems strange to write the same things twice.) What about collaborating with anti-abuse people in taking down names that are the source of attacks. Is that an imposition of an obligation on someone whose only connection to the DNS is the use you describe? It's not covered by any of those restrictions, I think. If it _is_ permitted, then we're back to the slippery slope we're trying to avoid. I appreciate very much the effort to solve this, but I'm decreasingly optimistic it's even possible in general language. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date.
That last message from me was of the inadvertent "pocket" variety/apologies and please ignore. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell "Luck is the residue of design" -- Branch Rickey ________________________________________ From: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] on behalf of Phil Corwin [psc@vlaw-dc.com] Sent: Friday, November 20, 2015 12:59 PM To: Andrew Sullivan; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] what ICANN can't regulate (was Re: Board comments on the Mission statement) Sent from my BlackBerry 10 smartphone. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW. Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Original Message From: Andrew Sullivan Sent: Friday, November 20, 2015 12:58 PM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] what ICANN can't regulate (was Re: Board comments on the Mission statement) On Fri, Nov 20, 2015 at 11:08:58AM -0500, David Post wrote:
I had proposed a revised "sevices clause" : ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
A couple of people raised a problem: What about the obligation that ICANN already imposes, through the RAA, on domain holders to provide accurate WHOIS data? Am I suggesting they can't do that?
I'm sure you're not suggesting that, but that's indeed the apparent effect. And of course, in some registries, ICANN is the enforcer of other terms (because those are the terms under which the top-level domain is delegated from the root, and if the operator refuses to impose those terms then it's possible to appeal to ICANN's compliance department. Note I'm not observing this with approval, but it is a fact.) I'm also a little worried about this "use a domain name for Internet communication". There are two ways to do that. One is to connect to a service, such as a web page. That's what most people on the Internet do, and in that sense more or less everything that connects to the Internet has this connection to the DNS. Another is to register a domain name and offer a service there. I _think_ this is what we're trying to prevent ICANN regulating, but strictly speaking such operators have more than just the "use a domain name for communication" relationship, because they're all operators of DNS zones. Moreover, some such operators we certainly don't want to regulate, but they're clearly registries in some sense as well. For instance, my employer (Dyn) operates dyndns.org and other such services, where people can register they're dynamicly-assigned addresses as hostnames in a public zone. That way you can reach services in your house on your cable modem (for instance). Dyn clearly has a greater connection to the DNS than a simple user of the DNS does, here, but I don't think we want ICANN to be able to regulate such services. Dyn is also a registrar, mostly for convenience, and there's the additional problem of whether we want ICANN to be able to regulate otherwise-unregulable things just because the company or individual happens to fall under an RAA in some other part of its business. The previous concentration on services is therefore better because it specifies the thing ICANN can't regulate, rather than the person or organization. (Of course, the old formulation is bad because it catches too any such things.)
do this - but why? Where does ICANN's authority to impose these obligations on name holders (but not others) come from? It comes, n my opinion, from its ability to implement consensus policies reasonably necessary to insure the security/stability of the DNS, developed by consensus.
I am not sure, but I think I disagree. I think it comes from ICANN's ability to set terms on the names it will delegate from the zone it controls -- in this case, the root zone. In this respect, ICANN is just like any other zone operator. It just so happens that they control a zone in which, ultimately, _everyone_ has dealings with. So their policies need to be very broad. I have policies about what I'll delegate from anvilwalrusden.com, too; they turn out to be very restrictive ("things I operate"), but they're the same kind of thing. And that's ultimately where the problem comes: people have realised that the root is a place of enormous control, and in order to get their pet project imposed on the Internet they're willing to try to use ICANN's control over the root and ignore whatever damage that might do. None of this would be a live problem if ICANN hadn't decided to expand the root and use it as a mechanism to communicate policy (full disclosure: I wouldn't even have a career if they hadn't decided that), but they did. The effort in the "no regulation" sentence is, I think, an effort to put a genie back in the bottle. (The "can write contracts" sentence is, of course, necessary to cut off other side effects of the "no regulation" sentence, and I think the arguments for it would be very weak without the "no regulation" sentence.)
"ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems."
Doesn't this mostly just duplicate the language already in the mission statement? (If it gets us there, I'm not going to object, but it seems strange to write the same things twice.) What about collaborating with anti-abuse people in taking down names that are the source of attacks. Is that an imposition of an obligation on someone whose only connection to the DNS is the use you describe? It's not covered by any of those restrictions, I think. If it _is_ permitted, then we're back to the slippery slope we're trying to avoid. I appreciate very much the effort to solve this, but I'm decreasingly optimistic it's even possible in general language. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4450/10889 - Release Date: 10/25/15 Internal Virus Database is out of date.
-----Original Message----- And that's ultimately where the problem comes: people have realised that the root is a place of enormous control, and in order to get their pet project imposed on the Internet they're willing to try to use ICANN's control over the root and ignore whatever damage that might do.
If you understand this then you understand the purpose of this prohibition. And you make it clear that this is something that MUST stay in the mission statement, and cannot be deleted without seriously bad consequences. I do not understand why you think this language is "dangerous." At best, you can say it is slightly redundant. But if you've studied information theory you k now that redundancy can overcome uncertainty. OTOH I can clearly see why its absence is dangerous. I can also tell you that if it is not in there you turn at least one and possibly two stakeholder groups against the entire transition. So not having anything that does that is off the table entirely.
Doesn't this mostly just duplicate the language already in the mission statement? (If it gets us there, I'm not going to object, but it seems strange to write the same things twice.)
No. We wouldn't be having this debate if it were nothing but a repetition of the mission statement
What about collaborating with anti-abuse people in taking down names that are the source of attacks. Is that an imposition of an obligation on someone whose only connection to the DNS is the use you describe? It's not covered by any of those restrictions, I think. If it _is_ permitted, then we're back to the slippery slope we're trying to avoid.
It is understandable that you might confuse these things, but it is confusion. Taking down a name based on a legal order from some external legitimate authority is something that can and does happen without ICANN itself having broader regulatory authority to do it. The U.S. Electronic Communications Privacy Act, for example, makes it illegal for private firms to reveal certain of their customers' information; but if they are ordered to reveal it in response to a higher legal authority it is ok for them to reveal it. If ICANN responds to lawful authorities in name takedowns it is not "regulating" these services of its own accord, it is complying with law. Please don't muddy this issue. (Actually it is usually registries and registrars, not ICANN who take down names in response to lawful requests anyway)
On Fri, Nov 20, 2015 at 07:58:02PM +0000, Mueller, Milton L wrote:
If you understand this then you understand the purpose of this prohibition.
I certainly understand the purpose of the prohibition, but I claim the prohibition is already there. I further claim that this additional sentence is going to be too hard to write without either accidentally forbidding things that oughtn't to be forbidden or failing to cover actions that should be covered. I appreciate, however, that there are people who insist this needs to be there.
I do not understand why you think this language is "dangerous."
Because it doesn't appear to be possible to write it without it covering some things that it should not cover. If we could, we wouldn't be having this very long discussion about it.
But if you've studied information theory you k now that redundancy can overcome uncertainty.
And if you've doe any coding work, you know that implementing the same thing in two slightly different ways is an opportunity for bugs. Redundancy is only useful when it's genuinely redundant; but that does not seem to be the case here, since we all seem to agree that the prohibitive sentence is a special case of the general rule against ICANN venturing outside its mandate; yet we don't seem to be able to write down the prohibitive language in such a way that it covers the whole Internet except for the parts that ICANN really should have something to say about.
confusion. Taking down a name based on a legal order from some external legitimate authority is something that can and does happen without ICANN itself having broader regulatory authority to do it.
Sure, but that's not the case I'm thinking of (in the case of a legal order, I don't think it'd be ICANN taking the name down, unless it was a TLD). We know that ICANN operations staff sometimes collaborate in information-gathering before such orders, and I'm wondering whether the targets in such cases are merely "using" the DNS. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
On 20 Nov 2015, at 20:28, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
I do not understand why you think this language is "dangerous."
Because it doesn't appear to be possible to write it without it covering some things that it should not cover. If we could, we wouldn't be having this very long discussion about it.
Not so: the length of our discussion is initially caused by the fact that people here have differing requirements and priorities, and we're trying to fashion a compromise we can all live with. And because for at least three stakeholder groups with differing views, this issue has primary salience: it implicates a key redline for which an unacceptable outcome would likely cause them to oppose transition outright, so simply giving up without an agreement is impossible, we must keep at it. And unfortunately the discussion is lengthened further by the proliferation of straw men.
On 11/20/15 9:56 AM, Andrew Sullivan wrote:
Another is to register a domain name and offer a service there. I_think_ this is what we're trying to prevent ICANN regulating
Recall, when we realized what the Conficker.C mechanism for rendezvous was registering domain names and offering a service there, the service being a series of rendezvous points for the nodes participating in the distributed system, "we" did "something". For our purposes today, we can identify "we" with the Corporation's efforts, lead by John Crain, and the Community, consisting of several ccTLD operators and others, including at least one Contracted Party. For our purposes today, we can identify tasking registries to block the known computed strings the .C variant would attempt to register, and altering the A records of strings already registered and published, and ancillary communications. We could point to the .C's anticeedents (which did not use the DNS to construct rendezvous points in real time) and sundry violations of national laws, which would get us off the hook, but suppose all we had to go on was the behavior of the .C system, like the Moris Worm system, of acquisition of uncontested devices -- its growing like topsy, but it isn't (yet) breaking any laws written for simpler criminal repurpose of connected devices. Were we mistaken to have interdicted the .C variant's use of domain names as rendezvous points, its reconstitution infrastructure, or was our action correct? Did contracts protect our conduct, or national law? If neither is sufficient, what else could permit us to interpose on some distributed system? Eric Brunner-Williams Eugene, Oregon
Eric: The interdiction of Conficker registrations was not facilitated or made possible by ICANN contracts. Indeed, no one was contractually bound to do so, the cooperation that the Conficker WG got in that instance was voluntary. And even if it wasn't, it dealt directly with domain name registrations, not with services that happen to use domains.
-----Original Message-----
Were we mistaken to have interdicted the .C variant's use of domain names as rendezvous points, its reconstitution infrastructure, or was our action correct?
Did contracts protect our conduct, or national law?
If neither is sufficient, what else could permit us to interpose on some distributed system?
At 12:56 PM 11/20/2015, Andrew Sullivan wrote:
SNIP
DP: "ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems."
AS: Doesn't this mostly just duplicate the language already in the mission statement? (If it gets us there, I'm not going to object, but it seems strange to write the same things twice.)
What about collaborating with anti-abuse people in taking down names that are the source of attacks. Is that an imposition of an obligation on someone whose only connection to the DNS is the use you describe? It's not covered by any of those restrictions, I think. If it _is_ permitted, then we're back to the slippery slope we're trying to avoid.
This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"? I would think this would be prohibited - UNLESS it is acting pursuant to a policy " for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems." That is not an insuperable bar, and shouldn't be. I could easily see how taking down names that are the source of attacks could be considered reasonably necessary to facilitate DNS security and stability. So ICANN would need to develop, through the consensus process, a policy for how it's going to deal with that - which "anti-abuse" people are they collaborating with? What process are they going to use? How will they accomplish the shut downs, technically? Is there any redress for wrongful shut-downs? Etc. If they do that, then they can go ahead; if they don't, they can't - and shouldn't be permitted to. I think that's the point of the clause - to stop the Board from doing things like this on its own. David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote:
This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem. But I think on at least some occasions there's been talk of ICANN having standards for what makes an abusive domain, and so the registries would be able to take things down under a consensus policy. (I don't recall the disposition of that right now; the point is, it seems like regulation though contracts to me.) But since you say
reasonably necessary to facilitate DNS security and stability. So ICANN would need to develop, through the consensus process, a policy for how it's going to deal with that - which "anti-abuse" people are they collaborating with? What process are they going to use? How will they accomplish the shut downs, technically? Is there any redress for wrongful shut-downs? Etc.
I guess you think this is something ICANN could be permitted to do. Thanks, that is helpful at least to my understanding. Now, if someone says that $badthing (child pornography, gambling, fake pharma, incitement to terrorism, blasphemy, whatever) indirectly has negative effects for security and stability, because it causes some governments to interfere with the correct operation of the DNS, should ICANN be permitted to make a consensus policy allowing takedown of such sites without court order? Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
On 20 Nov 2015, at 21:39, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem.
On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent). We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause. Malcolm.
Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 21 Nov 2015 01:52, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 20 Nov 2015, at 21:39, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem.
On the contrary, ICANN can and does cause Registries to shut down some
registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent).
SO: Just for clarity, is it really ICANN that causes the redelegation or just the Registrar making his/her own decision, perhaps for business reasons? I'd like to hear examples of this as I think it will be indeed a concern if ICANN goes that deep. As to the partial shutdown, should ICANN have shutdown the entire TLD instead?
We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause.
SO: If ICANN indeed gets involved in redelegation of a non-TLD except for situation where the TLD is reasigned globally (perhaps due to violation of the initial registry) which should not affect the registrants, then this warrants further look into. That said, I also think this can be a policy issues and a mission statement may not be where to fix it. Regards
Malcolm. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Normally it is a Registrar that decide on such a registrant transfer (I don't think "redelegation" is the term used). And at times, a Registry will receive a court order requiring it to transfer a domain to a new registrant. I am not aware of ICANN directly taking such action on its own volition, although I can imagine it acting on a court order, or Contractual Compliance going directly to a Registry due to a recalcitrant Registrar. Can you give examples? Alan At 20/11/2015 07:52 PM, Malcolm Hutty wrote:
On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent).
I agree with Malcolm. I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders. Paul -- Sent from myMail app for Android Friday, 20 November 2015, 07:52PM -05:00 from Malcolm Hutty < malcolm@linx.net> :
On 20 Nov 2015, at 21:39, Andrew Sullivan < ajs@anvilwalrusden.com > wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem.
On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent).
We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause.
Malcolm. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, It may be good if you make a suggestion as well, it may also be good if you indicate what part of board's comment you are not in support of. I think it's good that we recognise there are limited(yet unknown) circumstances where this happen and so I don't see how such limited circumstances(yet unknown) can be embedded into the mission. The clarification on role/responsibility of ICANN and other OCs is just being clarified in the mission even though such clarification has been operational. So noting spoils if the mission is maintained as proposed, perhaps there will be more facts/scenarios in future that will help provide appropriate wording which can then be included in the mission at a later time. I think the recent board's comment is one of the most neutral, persuasive and engaging writeup I have read from them so far(whoever held that pen did a good job). All their recommendations seem to make a lot of sense, so maybe we should forget about the author and address the content on its merits. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 21 Nov 2015 16:36, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
I agree with Malcolm. I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders.
Paul
-- Sent from myMail app for Android Friday, 20 November 2015, 07:52PM -05:00 from Malcolm Hutty < malcolm@linx.net>:
On 20 Nov 2015, at 21:39, Andrew Sullivan <ajs@anvilwalrusden.com <https://e-aj.my.com/compose?To=ajs@anvilwalrusden.com>> wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem.
On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent).
We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause.
Malcolm. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <https://e-aj.my.com/compose?To=Accountability%2dCross%2dCommunity@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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I worry that by deleting/modifying the restrictions clause they are opening up the language to overly broad interpretation. I agree with you that this Board submission is a thoughtful one and I am trying to engage it .... P -- Sent from myMail app for Android Saturday, 21 November 2015, 10:56AM -05:00 from Seun Ojedeji < seun.ojedeji@gmail.com> :
Hi, It may be good if you make a suggestion as well, it may also be good if you indicate what part of board's comment you are not in support of. I think it's good that we recognise there are limited(yet unknown) circumstances where this happen and so I don't see how such limited circumstances(yet unknown) can be embedded into the mission. The clarification on role/responsibility of ICANN and other OCs is just being clarified in the mission even though such clarification has been operational. So noting spoils if the mission is maintained as proposed, perhaps there will be more facts/scenarios in future that will help provide appropriate wording which can then be included in the mission at a later time. I think the recent board's comment is one of the most neutral, persuasive and engaging writeup I have read from them so far(whoever held that pen did a good job). All their recommendations seem to make a lot of sense, so maybe we should forget about the author and address the content on its merits. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 21 Nov 2015 16:36, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com > wrote:
I agree with Malcolm. I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders. Paul -- Sent from myMail app for Android Friday, 20 November 2015, 07:52PM -05:00 from Malcolm Hutty < malcolm@linx.net >:
On 20 Nov 2015, at 21:39, Andrew Sullivan < ajs@anvilwalrusden.com > wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem.
On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent).
We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause.
Malcolm. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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I realize even that statement is a bit too indefinite. I think everything up to the the last bit on p4-5 is perfectly good (or at least I assume it is subject to a technical expert telling me otherwise). I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this) and that would be something I think would be a mistake -- for many of the reasons Malcolm has already said more broadly. Paul -- Sent from myMail app for Android Saturday, 21 November 2015, 10:56AM -05:00 from Seun Ojedeji < seun.ojedeji@gmail.com> :
Hi, It may be good if you make a suggestion as well, it may also be good if you indicate what part of board's comment you are not in support of. I think it's good that we recognise there are limited(yet unknown) circumstances where this happen and so I don't see how such limited circumstances(yet unknown) can be embedded into the mission. The clarification on role/responsibility of ICANN and other OCs is just being clarified in the mission even though such clarification has been operational. So noting spoils if the mission is maintained as proposed, perhaps there will be more facts/scenarios in future that will help provide appropriate wording which can then be included in the mission at a later time. I think the recent board's comment is one of the most neutral, persuasive and engaging writeup I have read from them so far(whoever held that pen did a good job). All their recommendations seem to make a lot of sense, so maybe we should forget about the author and address the content on its merits. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 21 Nov 2015 16:36, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com > wrote:
I agree with Malcolm. I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders. Paul -- Sent from myMail app for Android Friday, 20 November 2015, 07:52PM -05:00 from Malcolm Hutty < malcolm@linx.net >:
On 20 Nov 2015, at 21:39, Andrew Sullivan < ajs@anvilwalrusden.com > wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem.
On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent).
We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause.
Malcolm. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted. We said: " The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns." Regards, Bruce Tonkin
Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo? -- Paul Sent from myMail app for Android Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> :
Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted.
We said:
" The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns."
Regards, Bruce Tonkin
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Hi, A lot has been said, there has been examples and counter examples as well. Could you share at least one example that has survived being countered and most importantly a mission wording that will adequately address that example. Thanks Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Nov 2015 00:42, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo?
-- Paul Sent from myMail app for Android Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au>:
Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted.
We said:
" The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns."
Regards, Bruce Tonkin
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As we have said all along we are planning for the future not relying on the past. We need to make sure that our bylaws are suitable for the next 18 years of ICANN. Lets not get caught up in looking for examples from the past and focus on lowering the potential risk in the future. The problem is that examples are always going to be subjective based on the proponent and their stance. I think we need to accept that a majority of the community feels that there is a potential risk that needs mitigation, the work we should be doing is working out the best way to implement that mitigation rather than going back and forth on examples. If we can’t come to agreement on alternative wording then we have to default back to the existing text that was in the 2nd draft report. -jg From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Sunday 22 November 2015 at 1:55 p.m. To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement) Hi, A lot has been said, there has been examples and counter examples as well. Could you share at least one example that has survived being countered and most importantly a mission wording that will adequately address that example. Thanks Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Nov 2015 00:42, "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo? -- Paul Sent from myMail app for Android Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>>: Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted. We said: " The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns." Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/compose?To=Accountability%2dCross%2dCommunity@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ 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
Hi, I was going in the pattern of thought of Paul and I think scenarios is what will help determine what other wordings are required in ICANN mission statement. I hope you will agree with me that mission statement should not be written around a future that is not going to happen; Any restrictive mission statement/wording needs to be well understood in the present otherwise it's future could create unintended consequences. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Nov 2015 15:02, "James Gannon" <james@cyberinvasion.net> wrote:
As we have said all along we are planning for the future not relying on the past. We need to make sure that our bylaws are suitable for the next 18 years of ICANN. Lets not get caught up in looking for examples from the past and focus on lowering the potential risk in the future. The problem is that examples are always going to be subjective based on the proponent and their stance. I think we need to accept that a majority of the community feels that there is a potential risk that needs mitigation, the work we should be doing is working out the best way to implement that mitigation rather than going back and forth on examples.
If we can’t come to agreement on alternative wording then we have to default back to the existing text that was in the 2nd draft report.
-jg
From: <accountability-cross-community-bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> Date: Sunday 22 November 2015 at 1:55 p.m. To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement)
Hi,
A lot has been said, there has been examples and counter examples as well. Could you share at least one example that has survived being countered and most importantly a mission wording that will adequately address that example.
Thanks
Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Nov 2015 00:42, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo?
-- Paul Sent from myMail app for Android Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au>:
Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted.
We said:
" The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns."
Regards, Bruce Tonkin
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I agree to a point, good risk scenario modelling will tell you to weight your risk based on likelihood, so we may have a scenario that is highly unlikely so it would be weighted lower. And I think that going down the line of having too specific a restriction is not good corporate governance when it comes to the bylaws either, its not the place for such a targeted restriction. Our bylaws should get the point of this whole discussion across clearly and simply restrict ICANN to its actual role, technical coordination, we don’t want ICANN to be in the position of being content police no matter how it ends up in that situation. I hope the majority of us can agree with this. At the same time we don’t want to restrict ICANN for executing its contracts as it requires itself to be able to do, I think all of us agree on that. However by wordsmithing detailed technical descriptions into the bylaws I think we are missing the ethos of what this restriction is supposed to do. We don’t want ICANN to be able to insert ‘voluntary’ provisions into its contracts that allow it to stray outside its mission. We don’t want ICANN to be able to or be placed into a position of policing content We don’t want ICANN to be the policeman of the internet We want ICANN to be able to enter into contracts an enforce them, when they have been entered into in good faith with regards to ICANNs mission and role within the DNS ecosystem We need to collectively step back and assess the simplest language to effect these goals. -j From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Sunday 22 November 2015 at 2:10 p.m. To: James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> Cc: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement) Hi, I was going in the pattern of thought of Paul and I think scenarios is what will help determine what other wordings are required in ICANN mission statement. I hope you will agree with me that mission statement should not be written around a future that is not going to happen; Any restrictive mission statement/wording needs to be well understood in the present otherwise it's future could create unintended consequences. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Nov 2015 15:02, "James Gannon" <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: As we have said all along we are planning for the future not relying on the past. We need to make sure that our bylaws are suitable for the next 18 years of ICANN. Lets not get caught up in looking for examples from the past and focus on lowering the potential risk in the future. The problem is that examples are always going to be subjective based on the proponent and their stance. I think we need to accept that a majority of the community feels that there is a potential risk that needs mitigation, the work we should be doing is working out the best way to implement that mitigation rather than going back and forth on examples. If we can’t come to agreement on alternative wording then we have to default back to the existing text that was in the 2nd draft report. -jg From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Sunday 22 November 2015 at 1:55 p.m. To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement) Hi, A lot has been said, there has been examples and counter examples as well. Could you share at least one example that has survived being countered and most importantly a mission wording that will adequately address that example. Thanks Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Nov 2015 00:42, "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo? -- Paul Sent from myMail app for Android Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>>: Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted. We said: " The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns." Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<https://e-aj.my.com/compose?To=Accountability%2dCross%2dCommunity@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ 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
On Sun, Nov 22, 2015 at 9:02 AM, James Gannon <james@cyberinvasion.net> wrote:
If we can’t come to agreement on alternative wording then we have to default back to the existing text that was in the 2nd draft report.
GS: I disagree with this statement. I think the recent discussions have shown substantial ambiguities and areas of dispute around the meaning, scope, explanation, and interpretation of the text in the second draft report. Furthermore, we have moved beyond the second draft language in our deliberations. I think that some of the changes to the second draft language have had fairly broad support and there is no reason to throw those advances out. At the very least, I think we would need an explicit call for consensus to determine the current level of support for the second draft language. Even if we want to *consider* reverting back to the second draft language, there's no reason to say that we *have to* do so. Greg
-jg
From: <accountability-cross-community-bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> Date: Sunday 22 November 2015 at 1:55 p.m. To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement)
Hi,
A lot has been said, there has been examples and counter examples as well. Could you share at least one example that has survived being countered and most importantly a mission wording that will adequately address that example.
Thanks
Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Nov 2015 00:42, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo?
-- Paul Sent from myMail app for Android Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au>:
Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted.
We said:
" The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns."
Regards, Bruce Tonkin
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Sorry Greg. We had that consensus earlier. Your representation of your constituency doesn't change that. If we reach a new consensus that's great. If not however your minority dissent doesn't change the historical facts. Paul -- Paul Sent from myMail app for Android Sunday, 22 November 2015, 05:12PM -05:00 from Greg Shatan < gregshatanipc@gmail.com> :
On Sun, Nov 22, 2015 at 9:02 AM, James Gannon < james@cyberinvasion.net > wrote:
If we can’t come to agreement on alternative wording then we have to default back to the existing text that was in the 2nd draft report.
GS: I disagree with this statement. I think the recent discussions have shown substantial ambiguities and areas of dispute around the meaning, scope, explanation, and interpretation of the text in the second draft report.
Furthermore, we have moved beyond the second draft language in our deliberations. I think that some of the changes to the second draft language have had fairly broad support and there is no reason to throw those advances out.
At the very least, I think we would need an explicit call for consensus to determine the current level of support for the second draft language.
Even if we want to consider reverting back to the second draft language, there's no reason to say that we have to do so.
Greg
-jg
From: < accountability-cross-community-bounces@icann.org > on behalf of Seun Ojedeji < seun.ojedeji@gmail.com > Date: Sunday 22 November 2015 at 1:55 p.m. To: Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com > Cc: " accountability-cross-community@icann.org " < accountability-cross-community@icann.org > Subject: Re: [CCWG-ACCT] Board comments on the Mission statement)
Hi, A lot has been said, there has been examples and counter examples as well. Could you share at least one example that has survived being countered and most importantly a mission wording that will adequately address that example. Thanks Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Nov 2015 00:42, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com > wrote:
Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo? -- Paul Sent from myMail app for Android Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au >:
Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted.
We said:
" The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns."
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Greg, Paul: Your coded exchanges are incomprehensible to most of us. What are you trying to achieve? As already noted, I think we have collectively demonstrated that this topic is out of scope for CCWG. CW On 22 Nov 2015, at 23:17, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Sorry Greg. We had that consensus earlier. Your representation of your constituency doesn't change that. If we reach a new consensus that's great. If not however your minority dissent doesn't change the historical facts.
Paul
-- Paul Sent from myMail app for Android
Sunday, 22 November 2015, 05:12PM -05:00 from Greg Shatan <gregshatanipc@gmail.com>:
On Sun, Nov 22, 2015 at 9:02 AM, James Gannon <james@cyberinvasion.net> wrote:
If we can’t come to agreement on alternative wording then we have to default back to the existing text that was in the 2nd draft report.
GS: I disagree with this statement. I think the recent discussions have shown substantial ambiguities and areas of dispute around the meaning, scope, explanation, and interpretation of the text in the second draft report.
Furthermore, we have moved beyond the second draft language in our deliberations. I think that some of the changes to the second draft language have had fairly broad support and there is no reason to throw those advances out.
At the very least, I think we would need an explicit call for consensus to determine the current level of support for the second draft language.
Even if we want to consider reverting back to the second draft language, there's no reason to say that we have to do so.
Greg
-jg
From: <accountability-cross-community-bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> Date: Sunday 22 November 2015 at 1:55 p.m. To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement)
Hi,
A lot has been said, there has been examples and counter examples as well. Could you share at least one example that has survived being countered and most importantly a mission wording that will adequately address that example.
Thanks
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 22 Nov 2015 00:42, "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com> wrote: Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo?
-- Paul Sent from myMail app for Android
Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au>:
Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted.
We said:
" The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns."
Regards, Bruce Tonkin
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Again no. It has been in scope for at least a year and through two reports. Limits on ICANN mission creep are at the very core of accountability. Saying otherwise doesn't make it so. -- Paul Sent from myMail app for Android Sunday, 22 November 2015, 05:22PM -05:00 from Christopher Wilkinson < lists@christopherwilkinson.eu> :
Greg, Paul:
Your coded exchanges are incomprehensible to most of us. What are you trying to achieve?
As already noted, I think we have collectively demonstrated that this topic is out of scope for CCWG.
CW
On 22 Nov 2015, at 23:17, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com > wrote:
Sorry Greg. We had that consensus earlier. Your representation of your constituency doesn't change that. If we reach a new consensus that's great. If not however your minority dissent doesn't change the historical facts. Paul -- Paul Sent from myMail app for Android Sunday, 22 November 2015, 05:12PM -05:00 from Greg Shatan < gregshatanipc@gmail.com >:
On Sun, Nov 22, 2015 at 9:02 AM, James Gannon < james@cyberinvasion.net > wrote:
If we can’t come to agreement on alternative wording then we have to default back to the existing text that was in the 2nd draft report.
GS: I disagree with this statement. I think the recent discussions have shown substantial ambiguities and areas of dispute around the meaning, scope, explanation, and interpretation of the text in the second draft report.
Furthermore, we have moved beyond the second draft language in our deliberations. I think that some of the changes to the second draft language have had fairly broad support and there is no reason to throw those advances out.
At the very least, I think we would need an explicit call for consensus to determine the current level of support for the second draft language.
Even if we want to consider reverting back to the second draft language, there's no reason to say that we have to do so.
Greg
-jg
From: < accountability-cross-community-bounces@icann.org > on behalf of Seun Ojedeji < seun.ojedeji@gmail.com > Date: Sunday 22 November 2015 at 1:55 p.m. To: Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com > Cc: " accountability-cross-community@icann.org " < accountability-cross-community@icann.org > Subject: Re: [CCWG-ACCT] Board comments on the Mission statement)
Hi, A lot has been said, there has been examples and counter examples as well. Could you share at least one example that has survived being countered and most importantly a mission wording that will adequately address that example. Thanks Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 22 Nov 2015 00:42, "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com > wrote:
Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo? -- Paul Sent from myMail app for Android Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au >:
Hello Paul,
>> I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted.
We said:
" The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns."
Regards, Bruce Tonkin
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Just for the record, he is not an appointed member, only a participant, so he is not entitled to a minority opinion in case there is less than full consensus among the members. el -- Sent from Dr Lisse's iPad mini
On 23 Nov 2015, at 00:17, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
Sorry Greg. We had that consensus earlier. Your representation of your constituency doesn't change that. If we reach a new consensus that's great. If not however your minority dissent doesn't change the historical facts.
Paul
-- Paul Sent from myMail app for Android
Sunday, 22 November 2015, 05:12PM -05:00 from Greg Shatan <gregshatanipc@gmail.com>:
On Sun, Nov 22, 2015 at 9:02 AM, James Gannon <james@cyberinvasion.net> wrote:
If we can’t come to agreement on alternative wording then we have to default back to the existing text that was in the 2nd draft report.
GS: I disagree with this statement. I think the recent discussions have shown substantial ambiguities and areas of dispute around the meaning, scope, explanation, and interpretation of the text in the second draft report.
Furthermore, we have moved beyond the second draft language in our deliberations. I think that some of the changes to the second draft language have had fairly broad support and there is no reason to throw those advances out.
At the very least, I think we would need an explicit call for consensus to determine the current level of support for the second draft language.
Even if we want to consider reverting back to the second draft language, there's no reason to say that we have to do so.
Greg
-jg
From: <accountability-cross-community-bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> Date: Sunday 22 November 2015 at 1:55 p.m. To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement)
Hi,
A lot has been said, there has been examples and counter examples as well. Could you share at least one example that has survived being countered and most importantly a mission wording that will adequately address that example.
Thanks
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 22 Nov 2015 00:42, "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com> wrote: Yes but there have been many such examples already e.g. Melton 5 minutes ago. We are already in the drafting. So this seems a bit retrograde mo?
-- Paul Sent from myMail app for Android
Saturday, 21 November 2015, 05:13PM -06:00 from Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au>:
Hello Paul,
I read the concerns about the restriction clause as suggesting that it be deleted (perhaps I am wrong in this)
No- we didn’t say that a restriction clause should be deleted.
We said:
" The Board asks that the CCWG provide some examples of what the CCWG believes that ICANN should and should not be able to do. That information can then be provided to counsel to see if text can be drafted to address the broader concerns."
Regards, Bruce Tonkin
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And I continue to be very troubled that in haste, we may put into words, Bylaws that ultimately prevent ICANN from doing its legitimate business. Alan At 21/11/2015 10:35 AM, Paul Rosenzweig wrote:
I agree with Malcolm. I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders.
Paul
-- Sent from myMail app for Android Friday, 20 November 2015, 07:52PM -05:00 from Malcolm Hutty <<mailto:malcolm@linx.net>malcolm@linx.net>:
On 20 Nov 2015, at 21:39, Andrew Sullivan <<https://e-aj.my.com//compose?To=ajs@anvilwalrusden.com>ajs@anvilwalrusden.com> wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem.
On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent).
We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause.
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I don't disagre.... we go too fast -- Sent from myMail app for Android Saturday, 21 November 2015, 09:43PM -05:00 from Alan Greenberg < alan.greenberg@mcgill.ca> :
And I continue to be very troubled that in haste, we may put into words, Bylaws that ultimately prevent ICANN from doing its legitimate business.
Alan
At 21/11/2015 10:35 AM, Paul Rosenzweig wrote:
I agree with Malcolm. I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders.
Paul
-- Sent from myMail app for Android Friday, 20 November 2015, 07:52PM -05:00 from Malcolm Hutty < malcolm@linx.net >:
On 20 Nov 2015, at 21:39, Andrew Sullivan < ajs@anvilwalrusden.com > wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem.
On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent).
We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause.
Malcolm. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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That is your explanation, not mine... At 21/11/2015 09:57 PM, Paul Rosenzweig wrote:
I don't disagre.... we go too fast
-- Sent from myMail app for Android Saturday, 21 November 2015, 09:43PM -05:00 from Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca>:
And I continue to be very troubled that in haste, we may put into words, Bylaws that ultimately prevent ICANN from doing its legitimate business. Alan At 21/11/2015 10:35 AM, Paul Rosenzweig wrote:
I agree with Malcolm. I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders. Paul -- Sent from myMail app for Android Friday, 20 November 2015, 07:52PM -05:00 from Malcolm Hutty <<https://e-aj.my.com///e-aj.my.com/compose/?mailto=mailto%3amalcolm@linx.net>malcolm@linx.net>:
On 20 Nov 2015, at 21:39, Andrew Sullivan <<https://e-aj.my.com//compose?To=ajs@anvilwalrusden.com> ajs@anvilwalrusden.com> wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem. On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent). We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause.
Malcolm. _______________________________________________ Accountability-Cross-Community mailing list <https://e-aj.my.com//compose?To=Accountability%2dCross%2dCommunity@icann.org>Accountability-Cross-Community@icann.org
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Ahhhh. So what formulation of the restrictions do you support? Or have you changed your mind? -- Paul Sent from myMail app for Android Saturday, 21 November 2015, 09:28PM -06:00 from Alan Greenberg < alan.greenberg@mcgill.ca> :
That is your explanation, not mine...
At 21/11/2015 09:57 PM, Paul Rosenzweig wrote:
I don't disagre.... we go too fast
-- Sent from myMail app for Android Saturday, 21 November 2015, 09:43PM -05:00 from Alan Greenberg < alan.greenberg@mcgill.ca >:
And I continue to be very troubled that in haste, we may put into words, Bylaws that ultimately prevent ICANN from doing its legitimate business. Alan At 21/11/2015 10:35 AM, Paul Rosenzweig wrote:
I agree with Malcolm. I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders. Paul -- Sent from myMail app for Android Friday, 20 November 2015, 07:52PM -05:00 from Malcolm Hutty < malcolm@linx.net >:
On 20 Nov 2015, at 21:39, Andrew Sullivan < ajs@anvilwalrusden.com > wrote:
On Fri, Nov 20, 2015 at 03:54:09PM -0500, David Post wrote: This is a good example - can ICANN shut down my domain as part of its "collaboration with anti-abuse people"?
Unless you're a TLD, ICANN can't shut down your domain anyway (at least not without taking a whole bunch of other people out), so if that's all we're talking about it's not a problem.
On the contrary, ICANN can and does cause Registries to shut down some registrants' domains (by requiring them to redelegate it to another person without the initial registrants' consent). We are arguing about the scope of circumstances in which ICANN should be permitted to do this. Constraining the range of circumstances is the entire point of this clause.
Malcolm.
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Paul: I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders. MM: You have hit the nail on the head here. I think we can put it into words – and we must. We can make progress by recognizing what is on and off the table. It should be clear by now that the “software process” definition does not do what needs to be done. Because it concentrates on describing a technical process that is so fundamental to the Internet his definition, oddly enough, has the potential to be massively over-inclusive. Second, again because it focuses on a technical process, it could fail to capture certain kinds of leverage that ICANN might illegitimately exert over Internet users or service providers through its contracts. I still don’t see what is wrong with this as a starting point: “ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.“ One could add to this some specific references to content regulation, but overall David Post’s longer version of this was fine to me. I think we need to shift to that as our reference model for the language going forward. I think Greg’s objections to this language, which are based on the notion that the language goes beyond “services” to include entities and people – have been shown repeatedly to be out of step with what people who are advocating this restriction want it to do. Here is a reminder of what we want the proscription to do: From David Post:
At the same time, I assume everyone also agrees that ICANN should NOT
be permitted to impose restrictions/obligations/regulations on
registrants that are not "like these" - that it can't use its power
over the Amazon.com domain name to tell Amazon what kind of products
and services it can or cannot offer, or how it has to deal with fraud
complaints, or what privacy protections it needs to include in its
operations; for things "like that." ICANN should NOT have the power to
take down the domain (directly or indirectly, i.e. by requiring registrars to do the takedown for them).
I also think that James Gannon's list was good.
We don’t want ICANN to be able to insert ‘voluntary’ provisions into
its contracts that allow it to stray outside its mission.
We don’t want ICANN to be able to or be placed into a position of
policing content. We don’t want ICANN to be the policeman of the
internet We want ICANN to be able to enter into contracts an enforce
them, when they have been entered into in good faith with regards to
ICANNs mission and role within the DNS ecosystem
Bottom line: we are going to have to abandon the technical definition of service approach and work from these criteria.
MM: "ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.“ SO: Combining "only connection" with "use" seem to mean that this is referring to every other person aside registry, Registrar and registrants. So in the essence it's referring to a typical internet user? If that is right then I will have no issue with this. However I have a few comments: - Isn't the further details proposed more of a policy issue than a mission issue? Especially considering that part of the mission statement already has this: "... Coordinates the allocation and assignment of names in the root zone..." A typical root string does not lead to anywhere that has content, does it? - Is there any known instance where this has happened OR(with the mindset of avoiding examples) is there any reason to believe ICANN could go that deep in future because this is literally talking about denying access to content/information. Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. Paul: I continue to be very troubled that we cannot put into words this very fundamental concept. All agree there are some limited circumstances when ICANN can and should be allowed to impose restrictions on activity through contract. All agree that there are many other circumstances in which that sort of action by ICANN would be illegitimate. The Board's proposal seems to leave the question open to later interpretation and for that reason I don't favor it -- but I also think it is imperative that some definitional language be hammered out .... without it the entire premise of IRP review and a limited ICANN mission founders. MM: You have hit the nail on the head here. I think we can put it into words – and we must. We can make progress by recognizing what is on and off the table. It should be clear by now that the “software process” definition does not do what needs to be done. Because it concentrates on describing a technical process that is so fundamental to the Internet his definition, oddly enough, has the potential to be massively over-inclusive. Second, again because it focuses on a technical process, it could fail to capture certain kinds of leverage that ICANN might illegitimately exert over Internet users or service providers through its contracts. I still don’t see what is wrong with this as a starting point: “ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.“ One could add to this some specific references to content regulation, but overall David Post’s longer version of this was fine to me. I think we need to shift to that as our reference model for the language going forward. I think Greg’s objections to this language, which are based on the notion that the language goes beyond “services” to include entities and people – have been shown repeatedly to be out of step with what people who are advocating this restriction want it to do. Here is a reminder of what we want the proscription to do:
From David Post:
At the same time, I assume everyone also agrees that ICANN should NOT
be permitted to impose restrictions/obligations/regulations on
registrants that are not "like these" - that it can't use its power
over the Amazon.com domain name to tell Amazon what kind of products
and services it can or cannot offer, or how it has to deal with fraud
complaints, or what privacy protections it needs to include in its
operations; for things "like that." ICANN should NOT have the power to
take down the domain (directly or indirectly, i.e. by requiring registrars to do the takedown for them).
I also think that James Gannon's list was good.
We don’t want ICANN to be able to insert ‘voluntary’ provisions into
its contracts that allow it to stray outside its mission.
We don’t want ICANN to be able to or be placed into a position of
policing content. We don’t want ICANN to be the policeman of the
internet We want ICANN to be able to enter into contracts an enforce
them, when they have been entered into in good faith with regards to
ICANNs mission and role within the DNS ecosystem
Bottom line: we are going to have to abandon the technical definition of service approach and work from these criteria. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
David, not withstanding anything else, there are a host (pun intended) of policies that predate the multistakeholder bottom-up process (such as but not limited to Whois) that your statement would invalidate. -- Sent from my mobile. Please excuse brevity and typos. On November 20, 2015 11:08:58 AM EST, David Post <david.g.post@gmail.com> wrote:
The problem with the current "services clause" - "ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." - is that it doesn't mean what it says; because registrars/registries are "services that use the Internet's unique identifiers," and because we recognize that ICANN can and does "impose regulations" on them ...
I had proposed a revised "sevices clause" : ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
A couple of people raised a problem: What about the obligation that ICANN already imposes, through the RAA, on domain holders to provide accurate WHOIS data? Am I suggesting they can't do that?
No, I'm not. I suspect there's agreement that ICANN should be permitted to do this - but why? Where does ICANN's authority to impose these obligations on name holders (but not others) come from? It comes, n my opinion, from its ability to implement consensus policies reasonably necessary to insure the security/stability of the DNS, developed by consensus. ICANN can impose these obligations on the holder of the davidpost.com domain because the WHOIS policy is one for which "uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS; and was developed through a bottomup, consensus-based multi-stakeholder process."
As I've said before, I think this is already captured in the Mission Statement; but since others think we should have an additional clarifying prohibition, it could read:
"ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems."
David
From: David Post <<mailto:david.g.post@gmail.com>david.g.post@gmail.com> Date: Thursday, November 19, 2015 at 4:39 PM To: Bruce Tonkin <<mailto:Bruce.Tonkin@melbourneit.com.au>Bruce.Tonkin@melbourneit.com.au> Cc: Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Bruce
One question: The Board suggests that if language i adopted that says "ICANN shall not impose regulations on services (i.e., any software process that accepts connections for the Internet) that use the Internet's unique identifiers, or the content that such services carry or provide ..." there might be some existing registry agreements that would be "out of compliance with ICANN's responsibilities." I'd be curious to know what the Board is concerned with there - what parts of which registry agreements might be affected (and made non-compliant) by this language?
With respect to that same "regulations on services" language, the Board says that it is "unclear," and asks for "some examples of what the CCWG believes that ICANN should and should not be able to do."
I agree that the "services" language isn't clear at the moment. Here's my attempt to capture the point that I think is being made: ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
I think it's pretty straightforward. I use a domain name (davidpost.com) for Internet communication. The idea -- and I think pretty much everyone agrees with this? - is that ICANN can't impose any obligations on me that affect how I operate the site, what content I host or don't host, what goods or services I can or cannot offer, what billing system I use for those goods and services, what anti-virus software I install, ... It can't do that directly (by imposing some contract terms on me itself) or indirectly (by getting 3d parties like the registries or registrars to impose the obligations on me).
Registries and registrars, of course, are not entities "whose only connection to the DNS is that they use a domain name for Internet communication," so this clause shouldn't affect ICANN's ability to impose obligations on them (which remains limited by other portions of the Mission Statement).
David
David
At 02:12 AM 11/19/2015, Bruce Tonkin wrote:
Hello All,
The Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015.
The Board information call today considered the changes to the mission statement identified in that update.
Attached is the Board's preliminary comments on the mission statement part of the Dublin update report. As we review the remainder of that Update, we'll send through additional comments.
Regards,
Bruce Tonkin
ICANN Board Liaison to the CCWG
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com ******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************
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Hello David,
I had proposed a revised "services clause" : ICANN should not be allowed to impose -- directly or indirectly, via its contracts -
I think that is better language than "regulate".
obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication.
In this context are you distinguishing general Internet users from registrants. Ie Registrants register domain names for Internet communications. There are a range of obligations imposed on registrants, through ICANN's agreements with registrars. See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. 3.7.7.11 The Registered Name Holder shall agree that its registration of the Registered Name shall be subject to suspension, cancellation, or transfer pursuant to any Specification or Policy, or pursuant to any registrar or registry procedure not inconsistent with any Specification or Policy, (1) to correct mistakes by Registrar or the Registry Operator in registering the name or (2) for the resolution of disputes concerning the Registered Name.
"ICANN should not be allowed to impose -- directly or indirectly, via its contracts -- obligations on persons or entities whose only connection to the DNS is that they use a domain name for Internet communication, except for 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 which are developed through a bottomup, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems."
I think the "except" clause gets closer to the current situation. In the first clause though I think it would be helpful to understand whether you are referring to general Internet users, or those that actually have a domain name, IP address or other unique identifier assigned to them. Regards, Bruce Tonkin
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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I want to echo and support Greg’s response below. Milton’s position that an existing provision of the RAA is out of the scope of ICANN’s mission is illuminating. I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANN’s mission in a manner that reflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement Milton, I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement. Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope? Thanks. Greg On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA): https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet? _______________________________________________ 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. =================================================================
participants (18)
-
Alan Greenberg -
Andrew Sullivan -
Avri Doria -
Bruce Tonkin -
Burr, Becky -
Christopher Wilkinson -
CW Mail -
David Post -
Dr Eberhard W Lisse -
Eric Brunner-Williams -
Greg Shatan -
James Gannon -
Malcolm Hutty -
Mueller, Milton L -
Paul Rosenzweig -
Phil Corwin -
Seun Ojedeji -
Silver, Bradley