Re: [CCWG-ACCT] Minority statements inclusion in report
But in all of this discussion, nobody has answered the question I asked several times and will ask again: if the "grandfathering" of the existing agreements does NOT mean what I think it could mean - a way for ICANN to assert that we are authorizing it to control, through registry-registrar and registrar-registrant contracts, the power to revoke domains based upon conduct or content in a manner inconsistent with the Mission Statement limitations - WHAT DOES IT MEAN? Why has that language been included in the Report, and what is it intended to accomplish?? David At 10:10 PM 11/30/2015, Silver, Bradley wrote:
I disagree completely that the grandfathering of the provisions of the RAA and RA would automatically also grandfather any action that ICANN might take to enforce such agreements. ICANN's mission is defined first and foremost in the positive - and the bylaws begin from the proposition that anything ICANN does must be in conformity with that. The existing language says as much. There is a difference between provisions relating to illegal activity, and the regulation of content, but given your motivation to accomplish "a belated overturning of an abuse of ICANN's power", I don't think I can convince you of that distinction.
________________________________________ From: David Post [david.g.post@gmail.com] Sent: Monday, November 30, 2015 7:04 PM To: Silver, Bradley Cc: Burr, Becky; Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
At 06:03 PM 11/30/2015, Silver, Bradley wrote: David,
I am having some trouble understanding your examples below. Is your concern with the grandfathering of the RAA that it would give ICANN total freedom in deciding how to respond to enforcing provisions like 3.18 even such enforcement was clearly not consistent with its stated mission?
Yes, that is a very, very serious concern. I don't know if I'd say it gives ICANN "total freedom", but close to it. If we're grandfathering in the agreements, then ICANN's actions to enforce the terms of the agreements could be seen as having been "grandfathered in" as well, and - as Becky's defamation example, and my fraud example, show - that would encompass many things that we would all agree (I think) are OUTSIDE the Mission.
Or do you believe that to the extent any enforcement by ICANN of provisions like 3.18 that touch on illegal activity that implicates âcontentâ would take such a provision outside the mission?  If itâs the latter, then it appears you are attempting to achieve a retrospective amendment of the RA and RAA by redeffining âillegal activityâ or âactivity contrary to applicable lawâ to specifically exclude any activity which relates to the content associated with the Registered Name.  Â
Yes, I believe this as well. I thought we had widespread agreement on that. To the extent enforcement by ICANN of provisions like 3.18 touch on illegal activity that implicates content is outside the mission. The Proposal clearly says: "ICANNs Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." If enforcement of the the provision (again, like the defamation/fraud examples) touches on "illegal activity that implicates or relates to content, I do not believe that ICANN can impose obligations (directly or indirectly) on domain name holders with respect to that content. The RAA ad the RA appear to allow them to do that - which is why we need to clarify that they're not "grandfathered" in.
It's funny, because a few hours ago you wrote:
BS: I cannot imagine how anyone could force ICANN to interpret and enforce 3.18 or any other provision in a manner that doesnt comport with ICANNâs mission, particularly since we have language that says: ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission
You couldn't imagine doing that - but that's exactly what you're now, no? You seem to be saying that ICANN may, through provisions like 3.18, deprive name holders of their registered names if their illegal activity implicates content - even though we have language that says, clearly (I thought), that ICANN may not regulate content.
This is precisely what I am concerned with, and what I would hope we're all concerned with: Using the existence of the (grandfathered) RA/RAA to allow ICANN to regulate content. You are convincing me that this is what you intend with the "grandfather" language. If I'm wrong about that, I'd be interested to know how I'm wrong and, as I asked earlier, what you think the "grandfather" language accomplishes.
I don't think I'm proposing a "retrospective amendment" of the RA and the RAA - more like a belated overturning of an abuse of ICANN's monopoly power.
I believe we need to insist on a Mission Statement that would negate any use of ICANN's monopoly power to impose an obligation on registrars to revoke domains based on allegations of illegal content. Far from persuading me that my reading of the grandfather in" language is "absurd," you are persuading me that it is precisely what you (ad perhaps others) have in mind - which illustrates the need for clarification.
David
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Monday, November 30, 2015 5:30 PM To: Burr, Becky Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
At 01:55 PM 11/30/2015, Burr, Becky wrote:
First, we discussed this on several calls (3 or 4), including the last. Second, on a more substantive note, it is completely absurd to suggest that grandfathering the language of existing contracts permits ICANN to enforce any contract term in any way it likes and to claim the protection of the picket fence forever going forward. Simply put, the drafters are instructed to ensure that the provisions of existing contracts are enforceable by their terms. As I said on this very topic recently:
Beyond that, the language of 3.18 in question imposes obligations on registrars maintain ann abuse point of contact, invesstigate allegations regarding illegal activities, take appropriate action, so I donât think that amounounts to regulating registrants. I also agree that there are situations in which illegal activity could impact the stability and security of the Internetâââ¢s unique identifiers (e.g., particularly involving malicious DNS exploits, etc.), so the provision seems to me to be appropriate in furtherance of ICANNââ¢s Mission.
The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an â approropriate responseâ is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce.
But that's the problem, right there. You say that if ICANN "exceeds the scope of its authority" if it "begins to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach."
But why is it so obvious that this exceeds the scope of its authority? You will say: because we have said elsewhere that ICANN shall not regulate content, and this regulates content.
But it is not far-fetched for someone to suggest that the "grandfathering" language modifies that, and was included precisely to make it clear that enforcing the provisions of existing agreements is WITHIN ICANN's authority. Under existing agreements, Registrars are already obligated to provide "consequences ... including suspension of domain name registrations" for "activities contrary to applicable law." Defamation is an "activity contrary to applicable law." Suspending registrations in response to allegations that an underlying site is defamatory is thus within the scope of (existing) agreements. If those agreements are grandfathered in, it looks to me like we're saying that when ICANN acts as it is authorized to do within the existing agreements, it is acting within the scope of its authority.
David
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>
From: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Date: Monday, November 30, 2015 at 1:32 PM To: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" < NCSG-DISCUSS@LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
The current Proposal (Annex 5 para 21) states in a "Note": "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered."
I don't believe any of the previous circulated drafts contained this language, and in my opinion it represents a very serious, and very substantial, step backwards in this process.
To begin with, it is not clear what "grandfathering" these agreements mean. One possible implication is that everything within the existing agreements is within ICANN's Mission - or to put it differently, that the language of the Mission Statement should be interpreted in a manner such that all provisions of the existing agreements are inside the "picket fence" of ICANN's enumerated powers. The opposite implication is possible, too - that there are elements of the existing agreements that are NOT within the Mission, but which are nonetheless being "grandfathered" in so that they will not be invalidated in the future (notwithstanding their inconsistency with the Mission).
I believe that the former interpretation may be the one that is intended - and I strongly disagree with that, and strongly dissent. The existing agreements contain a number of provisions that are outside the scope of ICANN's powers as we have defined it in the Mission Statement. One most prominent example: In Specification 1 of the new gTLD Registry Agreement, Registry operators agree to a set of mandatory "public interest commitments" - PICs - and to adhere to "any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination."
Among the mandatory PICs, the Registry operator must "include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from ... engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name."
Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. It is neither a matter "for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," nor was it "developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internetâs uniqueque names systems."
ICANN should not have the power to revoke, or to impose on others the requirement that they revoke, anyone's continued use of a domain name because they have "engaged in activity contrary to applicable law." Such a provision would appear to allow ICANN to do what is, elsewhere, flatly prohibited: to impose regulations on content. Activity contrary to applicable law includes activity that (a) violates consumer protection law, (b) infringes copyright, (c) violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant banking or securities laws, etc. etc. etc. At best, this provision is flatly inconsistent with the prohibition against regulating content. At worst, it can be interpreted to provide an "exception" to that prohibition - an exception that will swallow up the prohibition in its entirety.
David
At 10:53 AM 11/30/2015, Mueller, Milton L wrote:
FWIW, Robinâs dissent nt is fully in line with th the official comments submitted by the Noncommercial Stakeholders Group during the last public comment period. --MM
From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross Sent: Sunday, November 29, 2015 6:41 PM To: Thomas Rickert Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
Thanks, Thomas. See below.
Dissenting Opinion of Member Robin Gross (GNSO-NSCG)
The CCWG-Accountability make a number of helpful recommendations to improve organizational accountability at ICANN, however one aspect of the plan is deeply flawed: changing the role of ICANN's Governmental Advisory Committee (GAC) from purely an âadvisoryâ role to a â ⬠ââ¬decision makingâ role over fundamentaental matterers at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SOâs) compared to todaodayâs ICANN goveNN governance structure. p; The degree of governmental empowerment over ICANN resulting from the proposalâs cs community mechanhanism is dangerous to the success of the proposalâ¬s political acceptance as well as to its ultultimatte impact on a free and open Internet.
The creation of a community mechanism to hold ICANN accountable on key issues made a critical error by departing from the existing power balance between SOââ¢s and nd ACâs as determined by relative boardard appointments.ts. Instead, the proposed community mechanism elevates the ACâs relative to thethe SOâs compared wpared with todayâs b¬â¢s balance on ICANN's board of directors,rs, which does not currently provide a decision making role to GAC, and which retains the primacy of the Supporting Organizations on key decisions, particularly those within the SOâs mandate. The devaluing of tf tf the Supporting Organizations in ICANNâs key dy decisiosions was a common theme in both previous public comment periods, however the recommendations not only failed to address this widespread concern, but went even further in devaluing SOâs in the communitnity mechanism in the 3r 3rd report. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SOââ¢s and ACâs, and the dangers angers inherent it in changing those roles with a âone sizeze fitsts allâ approach to critical decision makingg.
Additionally, I object to the proposed departure from ICANNâs typical 30-day pubpublublic comment period on the 3rd report for CCWG-Accountability. The 3rd reportâs public commomment only allallows for 9 days of public comment after the language translations are scheduled to be published, which is far too short of a public comment period for a report of this significance and with so many important changes since previous drafts.
Robin Gross
On Nov 29, 2015, at 1:29 PM, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> wrote:
Dear Robin, as discussed during the last CCWG call, minority statements will be included in the report as appendices if and when they are received.
Best, Thomas
--- rickert.net<https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c=...>
Am 29.11.2015 um 21:37 schrieb Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>>: Dear Co-Chairs, I have still not received a response to this request. What is the process for submitting minority statements? Please advise. Thanks, Robin
On Nov 11, 2015, at 5:35 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote:
Dear Co-Chairs,
Could you please advise on the proposed schedule and process for ensuring that minority statements will be included in the report [of the executive summary]?
Thank you, Robin _______________________________________________ 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
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I am deeply disturbed. The CCWG has recently formally issued its Third Draft Proposal. If this was anything like a Structure Plan review or other formal public consultation in the UK, this would be close to its final form. Yet clearly, NOT EVEN THE MEMBERS AND PARTICPANTS know what it is we are proposing. This does not work. On 12/01/2015 12:41 PM, David Post wrote:
revoke domains based upon conduct or content in a manner inconsistent with the Mission Statement limitations - WHAT DOES IT MEAN? Why has that language been included in the Report, and what is it intended to accomplish??
It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party’s right to challenge the other party’s interpretation of that language. Nor does it modify the scope of ICANN’s Mission. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz> On 12/1/15, 7:41 AM, "David Post" <david.g.post@gmail.com> wrote:
But in all of this discussion, nobody has answered the question I asked several times and will ask again: if the "grandfathering" of the existing agreements does NOT mean what I think it could mean - a way for ICANN to assert that we are authorizing it to control, through registry-registrar and registrar-registrant contracts, the power to revoke domains based upon conduct or content in a manner inconsistent with the Mission Statement limitations - WHAT DOES IT MEAN? Why has that language been included in the Report, and what is it intended to accomplish??
David
At 10:10 PM 11/30/2015, Silver, Bradley wrote:
I disagree completely that the grandfathering of the provisions of the RAA and RA would automatically also grandfather any action that ICANN might take to enforce such agreements. ICANN's mission is defined first and foremost in the positive - and the bylaws begin from the proposition that anything ICANN does must be in conformity with that. The existing language says as much. There is a difference between provisions relating to illegal activity, and the regulation of content, but given your motivation to accomplish "a belated overturning of an abuse of ICANN's power", I don't think I can convince you of that distinction.
________________________________________ From: David Post [david.g.post@gmail.com] Sent: Monday, November 30, 2015 7:04 PM To: Silver, Bradley Cc: Burr, Becky; Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
At 06:03 PM 11/30/2015, Silver, Bradley wrote: David,
I am having some trouble understanding your examples below. Is your concern with the grandfathering of the RAA that it would give ICANN total freedom in deciding how to respond to enforcing provisions like 3.18 even such enforcement was clearly not consistent with its stated mission?
Yes, that is a very, very serious concern. I don't know if I'd say it gives ICANN "total freedom", but close to it. If we're grandfathering in the agreements, then ICANN's actions to enforce the terms of the agreements could be seen as having been "grandfathered in" as well, and - as Becky's defamation example, and my fraud example, show - that would encompass many things that we would all agree (I think) are OUTSIDE the Mission.
Or do you believe that to the extent any enforcement by ICANN of provisions like 3.18 that touch on illegal activity that implicates “content†would take such a provision outside the mission?  If it’s the latter, then it appears you are attempting to achieve a retrospective amendment of the RA and RAA by redeffining “illegal activity†or “activity contrary to applicable law†to specifically exclude any activity which relates to the content associated with the Registered Name.  Â
Yes, I believe this as well. I thought we had widespread agreement on that. To the extent enforcement by ICANN of provisions like 3.18 touch on illegal activity that implicates content is outside the mission. The Proposal clearly says: "ICANN’s Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." If enforcement of the the provision (again, like the defamation/fraud examples) touches on "illegal activity that implicates or relates to content, I do not believe that ICANN can impose obligations (directly or indirectly) on domain name holders with respect to that content. The RAA ad the RA appear to allow them to do that - which is why we need to clarify that they're not "grandfathered" in.
It's funny, because a few hours ago you wrote:
BS: I cannot imagine how anyone could force ICANN to interpret and enforce 3.18 or any other provision in a manner that doesnt comport with ICANN’s mission, particularly since we have language that says: ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission
You couldn't imagine doing that - but that's exactly what you're now, no? You seem to be saying that ICANN may, through provisions like 3.18, deprive name holders of their registered names if their illegal activity implicates content - even though we have language that says, clearly (I thought), that ICANN may not regulate content.
This is precisely what I am concerned with, and what I would hope we're all concerned with: Using the existence of the (grandfathered) RA/RAA to allow ICANN to regulate content. You are convincing me that this is what you intend with the "grandfather" language. If I'm wrong about that, I'd be interested to know how I'm wrong and, as I asked earlier, what you think the "grandfather" language accomplishes.
I don't think I'm proposing a "retrospective amendment" of the RA and the RAA - more like a belated overturning of an abuse of ICANN's monopoly power.
I believe we need to insist on a Mission Statement that would negate any use of ICANN's monopoly power to impose an obligation on registrars to revoke domains based on allegations of illegal content. Far from persuading me that my reading of the grandfather in" language is "absurd," you are persuading me that it is precisely what you (ad perhaps others) have in mind - which illustrates the need for clarification.
David
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Monday, November 30, 2015 5:30 PM To: Burr, Becky Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
At 01:55 PM 11/30/2015, Burr, Becky wrote:
First, we discussed this on several calls (3 or 4), including the last. Second, on a more substantive note, it is completely absurd to suggest that grandfathering the language of existing contracts permits ICANN to enforce any contract term in any way it likes and to claim the protection of the picket fence forever going forward. Simply put, the drafters are instructed to ensure that the provisions of existing contracts are enforceable by their terms. As I said on this very topic recently:
Beyond that, the language of 3.18 in question imposes obligations on registrars maintain ann abuse point of contact, invesstigate allegations regarding illegal activities, take appropriate action, so I don’t think that amounounts to regulating registrants. I also agree that there are situations in which illegal activity could impact the stability and security of the Internetâ€ââ„¢s unique identifiers (e.g., particularly involving malicious DNS exploits, etc.), so the provision seems to me to be appropriate in furtherance of ICANN’™s Mission.
The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an “ approropriate responseâ€Â is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce.
But that's the problem, right there. You say that if ICANN "exceeds the scope of its authority" if it "begins to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach."
But why is it so obvious that this exceeds the scope of its authority? You will say: because we have said elsewhere that ICANN shall not regulate content, and this regulates content.
But it is not far-fetched for someone to suggest that the "grandfathering" language modifies that, and was included precisely to make it clear that enforcing the provisions of existing agreements is WITHIN ICANN's authority. Under existing agreements, Registrars are already obligated to provide "consequences ... including suspension of domain name registrations" for "activities contrary to applicable law." Defamation is an "activity contrary to applicable law." Suspending registrations in response to allegations that an underlying site is defamatory is thus within the scope of (existing) agreements. If those agreements are grandfathered in, it looks to me like we're saying that when ICANN acts as it is authorized to do within the existing agreements, it is acting within the scope of its authority.
David
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>
From: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Date: Monday, November 30, 2015 at 1:32 PM To: Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-comm unity@icann.org>> Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" < NCSG-DISCUSS@LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-comm unity@icann.org>> Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
The current Proposal (Annex 5 para 21) states in a "Note": "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered."
I don't believe any of the previous circulated drafts contained this language, and in my opinion it represents a very serious, and very substantial, step backwards in this process.
To begin with, it is not clear what "grandfathering" these agreements mean. One possible implication is that everything within the existing agreements is within ICANN's Mission - or to put it differently, that the language of the Mission Statement should be interpreted in a manner such that all provisions of the existing agreements are inside the "picket fence" of ICANN's enumerated powers. The opposite implication is possible, too - that there are elements of the existing agreements that are NOT within the Mission, but which are nonetheless being "grandfathered" in so that they will not be invalidated in the future (notwithstanding their inconsistency with the Mission).
I believe that the former interpretation may be the one that is intended - and I strongly disagree with that, and strongly dissent. The existing agreements contain a number of provisions that are outside the scope of ICANN's powers as we have defined it in the Mission Statement. One most prominent example: In Specification 1 of the new gTLD Registry Agreement, Registry operators agree to a set of mandatory "public interest commitments" - PICs - and to adhere to "any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination."
Among the mandatory PICs, the Registry operator must "include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from ... engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name."
Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. It is neither a matter "for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," nor was it "developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internet̢۪s uniqueque names systems."
ICANN should not have the power to revoke, or to impose on others the requirement that they revoke, anyone's continued use of a domain name because they have "engaged in activity contrary to applicable law." Such a provision would appear to allow ICANN to do what is, elsewhere, flatly prohibited: to impose regulations on content. Activity contrary to applicable law includes activity that (a) violates consumer protection law, (b) infringes copyright, (c) violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant banking or securities laws, etc. etc. etc. At best, this provision is flatly inconsistent with the prohibition against regulating content. At worst, it can be interpreted to provide an "exception" to that prohibition - an exception that will swallow up the prohibition in its entirety.
David
At 10:53 AM 11/30/2015, Mueller, Milton L wrote:
FWIW, Robin’s dissent nt is fully in line with th the official comments submitted by the Noncommercial Stakeholders Group during the last public comment period. --MM
From: accountability-cross-community-bounces@icann.org<mailto:accountability-cr oss-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross Sent: Sunday, November 29, 2015 6:41 PM To: Thomas Rickert Cc: accountability-cross-community@icann.org<mailto:accountability-cross-comm unity@icann.org> Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
Thanks, Thomas. See below.
Dissenting Opinion of Member Robin Gross (GNSO-NSCG)
The CCWG-Accountability make a number of helpful recommendations to improve organizational accountability at ICANN, however one aspect of the plan is deeply flawed: changing the role of ICANN's Governmental Advisory Committee (GAC) from purely an “advisoryâ€Â role to a †⬠“decision makingâ€Â role over fundamentaental matterers at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SO’s) compared to todaoday’s ICANN goveNN governance structure. p; The degree of governmental empowerment over ICANN resulting from the proposal’s cs community mechanhanism is dangerous to the success of the proposal‬™s political acceptance as well as to its ultultimatte impact on a free and open Internet.
The creation of a community mechanism to hold ICANN accountable on key issues made a critical error by departing from the existing power balance between SO’™s and nd AC’s as determined by relative boardard appointments.ts. Instead, the proposed community mechanism elevates the AC’s relative to thethe SO’s compared wpared with today’s b¬â„¢s balance on ICANN's board of directors,rs, which does not currently provide a decision making role to GAC, and which retains the primacy of the Supporting Organizations on key decisions, particularly those within the SO’s mandate. The devaluing of tf tf the Supporting Organizations in ICANN’s key dy decisiosions was a common theme in both previous public comment periods, however the recommendations not only failed to address this widespread concern, but went even further in devaluing SO’s in the communitnity mechanism in the 3r 3rd report. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SO’™s and AC’s, and the dangers angers inherent it in changing those roles with a “one sizeze fitsts allâ€Â approach to critical decision makingg.
Additionally, I object to the proposed departure from ICANN’s typical 30-day pubpublublic comment period on the 3rd report for CCWG-Accountability. The 3rd report’s public commomment only allallows for 9 days of public comment after the language translations are scheduled to be published, which is far too short of a public comment period for a report of this significance and with so many important changes since previous drafts.
Robin Gross
On Nov 29, 2015, at 1:29 PM, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> wrote:
Dear Robin, as discussed during the last CCWG call, minority statements will be included in the report as appendices if and when they are received.
Best, Thomas
--- rickert.net<https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.n et_&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahO P8WDDkMr4k&m=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=9_5YAupJwVm6qd 9FYkcvB50XsN6XMpB3eFmtm-kYBKI&e=>
Am 29.11.2015 um 21:37 schrieb Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>>: Dear Co-Chairs, I have still not received a response to this request. What is the process for submitting minority statements? Please advise. Thanks, Robin
On Nov 11, 2015, at 5:35 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote:
Dear Co-Chairs,
Could you please advise on the proposed schedule and process for ensuring that minority statements will be included in the report [of the executive summary]?
Thank you, Robin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Comm unity@icann.org> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman _listinfo_accountability-2Dcross-2Dcommunity&d=CwIFAw&c=MOptNlVtIETeDALC_ lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2x r3-XYk0T3WQk2nZJMKkpAPb8&s=i6nC2zqhagaCM9LBEF9FSM9OQUGbtgjhWtJn0SZDlC0&e=
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.co m_people_david-2Dpost&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GR laq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb 8&s=Fl1398TNk9xv47A5Y-YQRUuFgu3qo_-RqygBmBz0HGc&e= book (Jefferson's Moose) https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n&d =CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDD kMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=_Q0ymYbtXLty3FhQE0R wADIX_JhqTa-NNV50Mv33Lok&e= <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n- 25A0-25A0-25A0-25A0&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRla q8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8& s=zDK4wmFn0ax2X4_X2uKnRltWXUgu0pnCEALSAlFjb8s&e= > music https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpost music&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYa hOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=ZHsu2Q-waQF0 0_YQQFgDLVgz72r_-yK6t9pTT_XMtQY&e= publications etc. https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com&d=C wIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkM r4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=G_LegHshfen4oqknas8mh 5SMoa7Tql5Pd3ih81h4C7s&e= <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25 20-2520-2520-2520-2520-2520_&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOif zm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJ MKkpAPb8&s=TGSxs1qk0jwLWs_iygOCt836Tu0uITFZ30KYceCmceI&e= > *******************************
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.co m_people_david-2Dpost&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GR laq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb 8&s=Fl1398TNk9xv47A5Y-YQRUuFgu3qo_-RqygBmBz0HGc&e= book (Jefferson's Moose) https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n&d =CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDD kMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=_Q0ymYbtXLty3FhQE0R wADIX_JhqTa-NNV50Mv33Lok&e= <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n- 25A0-25A0-25A0-25A0-25A0-25A0-25A0&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62 cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3W Qk2nZJMKkpAPb8&s=zYDKrXjxzRqrC1rhH5SU9Ai0oXotrvB3O6Fa6KDPDqE&e= > music https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpost music&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYa hOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=ZHsu2Q-waQF0 0_YQQFgDLVgz72r_-yK6t9pTT_XMtQY&e= <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpos tmusic-25A0&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjD mrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=tnyTbh 98_SfTnibYSgcu8W0LrUDJhGb82zCoV9lMc_w&e= > publications etc. https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com&d=C wIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkM r4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=G_LegHshfen4oqknas8mh 5SMoa7Tql5Pd3ih81h4C7s&e= <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25 20-2520-2520-2520-2520-2520-2520-2520-2520_&d=CwIFAw&c=MOptNlVtIETeDALC_l ULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr 3-XYk0T3WQk2nZJMKkpAPb8&s=aklCJk-vM6YpEIvurhyChV169C0rSqmp_HYqW8c97y0&e=
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Very helpful - thanks. If that was the intent, I'd propose that it be communicated to the lawyers who will be working on this, as I don't think that meaning is the only one that can be given to the language that is in there, and its an important qualification - especially the last sentence. David At 09:59 AM 12/1/2015, Burr, Becky wrote:
It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting partyâs right to challenge the other partyâs interpretation of that language. Nor does it modify the scope of ICANNâs Mission.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz>
On 12/1/15, 7:41 AM, "David Post" <david.g.post@gmail.com> wrote:
But in all of this discussion, nobody has answered the question I asked several times and will ask again: if the "grandfathering" of the existing agreements does NOT mean what I think it could mean - a way for ICANN to assert that we are authorizing it to control, through registry-registrar and registrar-registrant contracts, the power to revoke domains based upon conduct or content in a manner inconsistent with the Mission Statement limitations - WHAT DOES IT MEAN? Why has that language been included in the Report, and what is it intended to accomplish??
David
At 10:10 PM 11/30/2015, Silver, Bradley wrote:
I disagree completely that the grandfathering of the provisions of the RAA and RA would automatically also grandfather any action that ICANN might take to enforce such agreements. ICANN's mission is defined first and foremost in the positive - and the bylaws begin from the proposition that anything ICANN does must be in conformity with that. The existing language says as much. There is a difference between provisions relating to illegal activity, and the regulation of content, but given your motivation to accomplish "a belated overturning of an abuse of ICANN's power", I don't think I can convince you of that distinction.
________________________________________ From: David Post [david.g.post@gmail.com] Sent: Monday, November 30, 2015 7:04 PM To: Silver, Bradley Cc: Burr, Becky; Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
At 06:03 PM 11/30/2015, Silver, Bradley wrote: David,
I am having some trouble understanding your examples below.Ã Is your concern with the grandfathering of the RAA that it would give ICANN total freedom in deciding how to respond to enforcing provisions like 3.18 Â even such enforcement was clearly not consistent with its stated mission?
Yes, that is a very, very serious concern. I don't know if I'd say it gives ICANN "total freedom", but close to it. If we're grandfathering in the agreements, then ICANN's actions to enforce the terms of the agreements could be seen as having been "grandfathered in" as well, and - as Becky's defamation example, and my fraud example, show - that would encompass many things that we would all agree (I think) are OUTSIDE the Mission.
Or do you believe that to the extent any enforcement by ICANN of provisions like 3.18 that touch on illegal activity that implicates âcontentâ w would take such a provision outside the mission?à à If itâs the latter, then it appears you are ae attempting to achieve a retrospective amendment of the RA and RAA  by redeffining âillegal activitytyâ or âactivity contrary to applicable law lawâ to specifically exclude any activity which reelates to the content associated with the Registered Name. à Ã
Yes, I believe this as well. I thought we had widespread agreement on that. To the extent enforcement by ICANN of provisions like 3.18 touch on illegal activity that implicates content is outside the mission. The Proposal clearly says: "ICANNâs Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." If enforcement of the the provision (again, like the defamation/fraud examples) touches on "illegal activity that implicates or relates to content, I do not believe that ICANN can impose obligations (directly or indirectly) on domain name holders with respect to that content. The RAA ad the RA appear to allow them to do that - which is why we need to clarify that they're not "grandfathered" in.
It's funny, because a few hours ago you wrote:
BS: I cannot imagine how anyone could force ICANN to interpret and enforce 3.18 or any other provision in a manner that doesnt comport with ICANNâs mission, particularly since we have languaguage that says: ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission
You couldn't imagine doing that - but that's exactly what you're now, no? You seem to be saying that ICANN may, through provisions like 3.18, deprive name holders of their registered names if their illegal activity implicates content - even though we have language that says, clearly (I thought), that ICANN may not regulate content.
This is precisely what I am concerned with, and what I would hope we're all concerned with: Using the existence of the (grandfathered) RA/RAA to allow ICANN to regulate content. You are convincing me that this is what you intend with the "grandfather" language. If I'm wrong about that, I'd be interested to know how I'm wrong and, as I asked earlier, what you think the "grandfather" language accomplishes.
I don't think I'm proposing a "retrospective amendment" of the RA and the RAA - more like a belated overturning of an abuse of ICANN's monopoly power.
I believe we need to insist on a Mission Statement that would negate any use of ICANN's monopoly power to impose an obligation on registrars to revoke domains based on allegations of illegal content. Far from persuading me that my reading of the grandfather in" language is "absurd," you are persuading me that it is precisely what you (ad perhaps others) have in mind - which illustrates the need for clarification.
David
From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Monday, November 30, 2015 5:30 PM To: Burr, Becky Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
At 01:55 PM 11/30/2015, Burr, Becky wrote:
First, we discussed this on several calls (3 or 4), including the last. Second, on a more substantive note, it is completely absurd to suggest that grandfathering the language of existing contracts permits ICANN to enforce any contract term in any way it likes and to claim the protection of the picket fence forever going forward. Simply put, the drafters are instructed to ensure that the provisions of existing contracts are enforceable by their terms. As I said on this very topic recently:
Beyond that, the language of 3.18 in question imposes obligations on registrars  maintain ann abuse point of contact, invesstigate allegations regarding illegal activities, take appropriate action, so I donât think that amounounts to regulating registrstrants. I also agree that there are situations in which illegal activity could impact the stability and security of the Internetâââ¢s unique identifieriers (e.g., particularly involving malicious DNS exploits, etc.), so the provision seems to me to be appropriate in furtherance of ICANNââ¢s Mission.
on.
The problem, of course, is that not all illegal activity threatens the stability and security of the DNS; behavior that is illegal in some jurisdictions is not illegal in all jurisdictions; and the legality/illegality of a particular activity is generally a determination left to sovereigns or courts. So, what constitutes an â approropriate responseâÃÂ
Â
is going to vary from case to case. Theoretically, ICANN could choose to enforce the requirement in a manner that exceeded the scope of its authority, e.g., it could begin to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach. But I think 3.18 itself is a legitimate contract provision that ICANN should be able to enforce.
But that's the problem, right there. You say that if ICANN "exceeds the scope of its authority" if it "begins to say that registrars who do not suspend registrations in response to allegations that an underlying site is defamatory are in breach."
But why is it so obvious that this exceeds the scope of its authority? You will say: because we have said elsewhere that ICANN shall not regulate content, and this regulates content.
But it is not far-fetched for someone to suggest that the "grandfathering" language modifies that, and was included precisely to make it clear that enforcing the provisions of existing agreements is WITHIN ICANN's authority. Under existing agreements, Registrars are already obligated to provide "consequences ... including suspension of domain name registrations" for "activities contrary to applicable law." Defamation is an "activity contrary to applicable law." Suspending registrations in response to allegations that an underlying site is defamatory is thus within the scope of (existing) agreements. If those agreements are grandfathered in, it looks to me like we're saying that when ICANN acts as it is authorized to do within the existing agreements, it is acting within the scope of its authority.
David
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>
From: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Date: Monday, November 30, 2015 at 1:32 PM To: Accountability Community < accountability-cross-community@icann.org<mailt o:accountability-cross-comm>>unity@icann.org>> Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" < NCSG-DISCUSS@LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>>, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community < accountability-cross-community@icann.org<mailt o:accountability-cross-comm>>unity@icann.org>> Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
The current Proposal (Annex 5 para 21) states in a "Note": "For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered."
I don't believe any of the previous circulated drafts contained this language, and in my opinion it represents a very serious, and very substantial, step backwards in this process.
To begin with, it is not clear what "grandfathering" these agreements mean. One possible implication is that everything within the existing agreements is within ICANN's Mission - or to put it differently, that the language of the Mission Statement should be interpreted in a manner such that all provisions of the existing agreements are inside the "picket fence" of ICANN's enumerated powers. The opposite implication is possible, too - that there are elements of the existing agreements that are NOT within the Mission, but which are nonetheless being "grandfathered" in so that they will not be invalidated in the future (notwithstanding their inconsistency with the Mission).
I believe that the former interpretation may be the one that is intended - and I strongly disagree with that, and strongly dissent. The existing agreements contain a number of provisions that are outside the scope of ICANN's powers as we have defined it in the Mission Statement. One most prominent example: In Specification 1 of the new gTLD Registry Agreement, Registry operators agree to a set of mandatory "public interest commitments" - PICs - and to adhere to "any remedies ICANN imposes (which may include any reasonable remedy, including for the avoidance of doubt, the termination of the Registry Agreement pursuant to Section 4.3(e) of the Agreement) following a determination by any PICDRP panel and to be bound by any such determination."
Among the mandatory PICs, the Registry operator must "include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from ... engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name."
Prohibiting domain name holders from "engaging in activity contrary to applicable law" is NOT within ICANN's scope as defined in the Mission Statement. It is neither a matter "for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS," nor was it "developed through a bottom-up, consensus-based multi-stakeholder process and designed to ensure the stable and secure operation of the Internetâs uniqueque names systems."
ICANN sh should not have the power to revoke, or to impose on others the requirement that they revoke, anyone's continued use of a domain name because they have "engaged in activity contrary to applicable law." Such a provision would appear to allow ICANN to do what is, elsewhere, flatly prohibited: to impose regulations on content. Activity contrary to applicable law includes activity that (a) violates consumer protection law, (b) infringes copyright, (c) violates anti-fraud laws, (d) infringes trademarks, (e) violates relevant banking or securities laws, etc. etc. etc. At best, this provision is flatly inconsistent with the prohibition against regulating content. At worst, it can be interpreted to provide an "exception" to that prohibition - an exception that will swallow up the prohibition in its entirety.
David
At 10:53 AM 11/30/2015, Mueller, Milton L wrote:
FWIW, Robin̢̮s ds dissent nt is fully in line with th the official comments submitted by the Noncommercial Stakeholders Group during the last public comment period. --MM
From: accountability-cross-community-bounces@icann.o rg<mailto:accountability-cr>>oss-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross Sent: Sunday, November 29, 2015 6:41 PM To: Thomas Rickert Cc: accountability-cross-community@icann.org<mailt o:accountability-cross-comm>>unity@icann.org> Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
Thanks, Thomas. See below.
Dissenting Opinion of Member Robin Gross (GNSO-NSCG)
The CCWG-Accountability make a number of helpful recommendations to improve organizational accountability at ICANN, however one aspect of the plan is deeply flawed: changing the role of ICANN's Governmental Advisory Committee (GAC) from purely an ÃÆâadvisoryÃÆâ¢Ã role to a ÃÆâ ÃÆ⬠ÃÆâââ¢âìdecision makingÃÆâàrole over fundadamentaental matterers at ICANN, including its governance. Consequently the proposal marginalizes the role of Supporting Organizations (SOÃÆâs) comparedred to todaodayÃÆâs ICANN goveNN governance
structure. p; The degree of governmental empowerment over ICANN resulting from the proposalÃÆâs¢s cs community mechanhanism is dangerous to the success of the proposalÃÆâ¬s political acceptancence as well as to its ultultimatte impact on a free and open Internet.
The creation of a community mechanism to hold ICANN accountable on key issues made a critical error by departing from the existing power balance between SOÃÆââ¢s and nd ACÃÆâââ¬s as determined by relative boardard appointmentts.ts. Instead, the proposed community mechanism elevates the ACÃÆâs relative to thethe SOÃÆÃÂâs compared wpared with todayÃÆâs b¬¢s b¬â¢s balance on ICANN's board of directors,rs, whiich does not currently provide a decision making role to GAC, and which retains the primacy of the Supporting Organizations on key decisions, particularly those within the SOÃÆâs mandate. The devaluinging of tf tf the Supporting Organizations in ICANNÃÆâs key dy decisiosions was a common theme in botboth previous public comment periods, however the recommendations not only failed to address this widespread concern, but went even further in devaluing SOÃÆââ¬s in the communitnity mechanism in the 3r 3rd rreport. The community mechanism failed to take into account the appropriate roles and responsibilities of the various SOÃÆââ¢s and ACÃÆââ¢â¬â¢s, and the dangers angers inherent it in changing those roles with a ÃÆâone sizeze fitsts allÃÆÆâàapproach to critical decision makingg.
Additionally, I object to the proposed departure from ICANN̢̮s typical 30-day pubpublublic commomment period on the 3rd report for CCWG-Accountability. The 3rd report̢̮s public commomment only ly allallows for 9 days of public comment after the language translations are scheduled to be published, which is far too short of a public comment period for a report of this significance and with so many important changes since previous drafts.
Robin Gross
On Nov 29, 2015, at 1:29 PM, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> wrote:
Dear Robin, as discussed during the last CCWG call, minority statements will be included in the report as appendices if and when they are received.
Best, Thomas
--- rickert.net<https://urldefense.proofpoint.com/ v2/url?u=http-3A__rickert.n>>et_&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahO P8WDDkMr4k&m=Qv0jYqBGBpDcX5hfJBnWctfriZdKXCzPTTlEhjSanvQ&s=9_5YAupJwVm6qd 9FYkcvB50XsN6XMpB3eFmtm-kYBKI&e=>
Am 29.11.2015 um 21:37 schrieb Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>>: Dear Co-Chairs, I have still not received a response to this request. What is the process for submitting minority statements? Please advise. Thanks, Robin
On Nov 11, 2015, at 5:35 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote:
Dear Co-Chairs,
Could you please advise on the proposed schedule and process for ensuring that minority statements will be included in the report [of the executive summary]?
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.co m_people_david-2Dpost&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GR laq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb 8&s=Fl1398TNk9xv47A5Y-YQRUuFgu3qo_-RqygBmBz0HGc&e= book (Jefferson's Moose) https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n&d =CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDD kMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=_Q0ymYbtXLty3FhQE0R wADIX_JhqTa-NNV50Mv33Lok&e= <https://urldefense.proofpoint.com/v2/url?u=ht tp-3A__tinyurl.com_c327w2n->>25A0-25A0-25A0-25A0&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRla q8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8& s=zDK4wmFn0ax2X4_X2uKnRltWXUgu0pnCEALSAlFjb8s&e= > music https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpost music&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYa hOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=ZHsu2Q-waQF0 0_YQQFgDLVgz72r_-yK6t9pTT_XMtQY&e= publications etc. https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com&d=C wIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkM r4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=G_LegHshfen4oqknas8mh 5SMoa7Tql5Pd3ih81h4C7s&e= <https://urldefense.proofpoint.com/v2/url?u=ht tp-3A__www.davidpost.com-25>>20-2520-2520-2520-2520-2520_&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOif zm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJ MKkpAPb8&s=TGSxs1qk0jwLWs_iygOCt836Tu0uITFZ30KYceCmceI&e= > *******************************
******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.co m_people_david-2Dpost&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GR laq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb 8&s=Fl1398TNk9xv47A5Y-YQRUuFgu3qo_-RqygBmBz0HGc&e= book (Jefferson's Moose) https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n&d =CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDD kMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=_Q0ymYbtXLty3FhQE0R wADIX_JhqTa-NNV50Mv33Lok&e= <https://urldefense.proofpoint.com/v2/url?u=ht tp-3A__tinyurl.com_c327w2n->>25A0-25A0-25A0-25A0-25A0-25A0-25A0&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62 cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3W Qk2nZJMKkpAPb8&s=zYDKrXjxzRqrC1rhH5SU9Ai0oXotrvB3O6Fa6KDPDqE&e= > music https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpost music&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYa hOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=ZHsu2Q-waQF0 0_YQQFgDLVgz72r_-yK6t9pTT_XMtQY&e= <https://urldefense.proofpoint.com/v2/url?u=ht tp-3A__tinyurl.com_davidpos>>tmusic-25A0&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjD mrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=tnyTbh 98_SfTnibYSgcu8W0LrUDJhGb82zCoV9lMc_w&e= > publications etc. https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com&d=C wIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkM r4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=G_LegHshfen4oqknas8mh 5SMoa7Tql5Pd3ih81h4C7s&e= <https://urldefense.proofpoint.com/v2/url?u=ht tp-3A__www.davidpost.com-25>>20-2520-2520-2520-2520-2520-2520-2520-2520_&d=CwIFAw&c=MOptNlVtIETeDALC_l ULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr 3-XYk0T3WQk2nZJMKkpAPb8&s=aklCJk-vM6YpEIvurhyChV169C0rSqmp_HYqW8c97y0&e=
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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com _people_david-2Dpost&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRla q8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s =Fl1398TNk9xv47A5Y-YQRUuFgu3qo_-RqygBmBz0HGc&e= book (Jefferson's Moose) https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n&d= CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkM r4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=_Q0ymYbtXLty3FhQE0RwAD IX_JhqTa-NNV50Mv33Lok&e= music https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostm usic&d=CwIFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahO P8WDDkMr4k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=ZHsu2Q-waQF00_Y QQFgDLVgz72r_-yK6t9pTT_XMtQY&e= publications etc. https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com&d=Cw IFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4 k&m=Ga84YD1sKBy_FJcMc2xr3-XYk0T3WQk2nZJMKkpAPb8&s=G_LegHshfen4oqknas8mh5SM oa7Tql5Pd3ih81h4C7s&e= *******************************
******************************* 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 *******************************
-----Original Message----- It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party’s right to challenge the other party’s interpretation of that language. Nor does it modify the scope of ICANN’s Mission.
This is reassuring, Becky, but I want it to be clear. Are you willing to add to the current report the following language: The grandfathering statement, however, cannot be used to modify the scope of ICANN's mission nor to modify any contracting party’s right to challenge the other party’s interpretation of contractual language if they think enforcement actions are expanding the scope of ICANN's mission.
Milton - who is the "other party" in your suggested amendment below? -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 12:13 PM To: Burr, Becky; David Post; Silver, Bradley Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message----- It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party’s right to challenge the other party’s interpretation of that language. Nor does it modify the scope of ICANN’s Mission.
This is reassuring, Becky, but I want it to be clear. Are you willing to add to the current report the following language: The grandfathering statement, however, cannot be used to modify the scope of ICANN's mission nor to modify any contracting party’s right to challenge the other party’s interpretation of contractual language if they think enforcement actions are expanding the scope of ICANN's mission. ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. =================================================================
I have no problem providing additional guidance to the drafters: What does it mean that the language of these agreements are grandfathered? It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. It does not modify the right of any party materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN¹s Mission. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz> On 12/1/15, 12:18 PM, "Silver, Bradley" <Bradley.Silver@timewarner.com> wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 12:13 PM To: Burr, Becky; David Post; Silver, Bradley Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message----- It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. Nor does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the scope of ICANN's mission nor to modify any contracting party¹s right to challenge the other party¹s interpretation of contractual language if they think enforcement actions are expanding the scope of ICANN's mission.
=================================================================
Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com
=================================================================
================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. =================================================================
Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message----- From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Tuesday, December 1, 2015 12:29 PM To: Silver, Bradley; Mueller, Milton L; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are grandfathered? It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. It does not modify the right of any party materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz>
On 12/1/15, 12:18 PM, "Silver, Bradley" <Bradley.Silver@timewarner.com> wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 12:13 PM To: Burr, Becky; David Post; Silver, Bradley Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message----- It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. Nor does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the scope of ICANN's mission nor to modify any contracting party¹s right to challenge the other party¹s interpretation of contractual language if they think enforcement actions are expanding the scope of ICANN's mission.
========================================================= ========
Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com
========================================================= ========
========================================================= ======== This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ========================================================= ========
Suggested tweak - It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party's right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN's Mission. -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message-----
From: Burr, Becky [mailto:Becky.Burr@neustar.biz]
Sent: Tuesday, December 1, 2015 12:29 PM
To: Silver, Bradley; Mueller, Milton L; David Post
Cc: Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are
grandfathered?
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires. It
does not, however, modify any contracting party¹s right to challenge
the other party¹s interpretation of that language. It does not modify
the right of any party materially affected (as defined in the Bylaws)
by an action or inaction in violation ICANN¹s Bylaws to seek redress
through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz
On 12/1/15, 12:18 PM, "Silver, Bradley"
<Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>
wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message-----
From: Mueller, Milton L [mailto:milton@gatech.edu]
Sent: Tuesday, December 01, 2015 12:13 PM
To: Burr, Becky; David Post; Silver, Bradley
Cc: Thomas Rickert; Accountability Cross Community
Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message-----
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires.
It does not, however, modify any contracting party¹s right to
challenge the other party¹s interpretation of that language. Nor
does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the
scope
of ICANN's mission nor to modify any contracting party¹s right to
challenge the other party¹s interpretation of contractual language if
they think enforcement actions are expanding the scope of ICANN's
mission.
=========================================================
========
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.
=========================================================
========
================================================================= 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. =================================================================
Ok by me but as a contracted party I would have to wonder how someone other than me and not materially affected would have standing in any case J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Tuesday, December 1, 2015 at 3:26 PM To: "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Suggested tweak – It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN’s Mission. -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message-----
From: Burr, Becky [mailto:Becky.Burr@neustar.biz]
Sent: Tuesday, December 1, 2015 12:29 PM
To: Silver, Bradley; Mueller, Milton L; David Post
Cc: Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are
grandfathered?
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires. It
does not, however, modify any contracting party¹s right to challenge
the other party¹s interpretation of that language. It does not modify
the right of any party materially affected (as defined in the Bylaws)
by an action or inaction in violation ICANN¹s Bylaws to seek redress
through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz
On 12/1/15, 12:18 PM, "Silver, Bradley"
<Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>
wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message-----
From: Mueller, Milton L [mailto:milton@gatech.edu]
Sent: Tuesday, December 01, 2015 12:13 PM
To: Burr, Becky; David Post; Silver, Bradley
Cc: Thomas Rickert; Accountability Cross Community
Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message-----
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires.
It does not, however, modify any contracting party¹s right to
challenge the other party¹s interpretation of that language. Nor
does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the
scope
of ICANN's mission nor to modify any contracting party¹s right to
challenge the other party¹s interpretation of contractual language if
they think enforcement actions are expanding the scope of ICANN's
mission.
=========================================================
========
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.
=========================================================
========
================================================================= 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. =================================================================
Do not support. Becky's original wording is better. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Tuesday, December 1, 2015 3:27 PM To: Mueller, Milton L; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Suggested tweak - It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party's right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN's Mission. -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message-----
From: Burr, Becky [mailto:Becky.Burr@neustar.biz]
Sent: Tuesday, December 1, 2015 12:29 PM
To: Silver, Bradley; Mueller, Milton L; David Post
Cc: Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are
grandfathered?
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires. It
does not, however, modify any contracting party¹s right to challenge
the other party¹s interpretation of that language. It does not modify
the right of any party materially affected (as defined in the Bylaws)
by an action or inaction in violation ICANN¹s Bylaws to seek redress
through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz
On 12/1/15, 12:18 PM, "Silver, Bradley"
<Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>
wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message-----
From: Mueller, Milton L [mailto:milton@gatech.edu]
Sent: Tuesday, December 01, 2015 12:13 PM
To: Burr, Becky; David Post; Silver, Bradley
Cc: Thomas Rickert; Accountability Cross Community
Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message-----
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires.
It does not, however, modify any contracting party¹s right to
challenge the other party¹s interpretation of that language. Nor
does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the
scope
of ICANN's mission nor to modify any contracting party¹s right to
challenge the other party¹s interpretation of contractual language if
they think enforcement actions are expanding the scope of ICANN's
mission.
=========================================================
========
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.
=========================================================
========
================================================================= 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. =================================================================
Some context for my tweaks - I don't know what is meant by a "free standing case", and the words "without context" seem like a potentially broad carve out to the grandfathering language. The sentence was tweaked to clarify that the provisions of such agreement are "on their face", within the mission. It also doesn't prejudice the rights of any third party to seek redress under an IRP. No rights are expanded by this language. From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:45 PM To: Silver, Bradley; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Do not support. Becky's original wording is better. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Tuesday, December 1, 2015 3:27 PM To: Mueller, Milton L; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Suggested tweak - It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party's right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN's Mission. -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message-----
From: Burr, Becky [mailto:Becky.Burr@neustar.biz]
Sent: Tuesday, December 1, 2015 12:29 PM
To: Silver, Bradley; Mueller, Milton L; David Post
Cc: Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are
grandfathered?
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires. It
does not, however, modify any contracting party¹s right to challenge
the other party¹s interpretation of that language. It does not modify
the right of any party materially affected (as defined in the Bylaws)
by an action or inaction in violation ICANN¹s Bylaws to seek redress
through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz
On 12/1/15, 12:18 PM, "Silver, Bradley"
<Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>
wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message-----
From: Mueller, Milton L [mailto:milton@gatech.edu]
Sent: Tuesday, December 01, 2015 12:13 PM
To: Burr, Becky; David Post; Silver, Bradley
Cc: Thomas Rickert; Accountability Cross Community
Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message-----
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires.
It does not, however, modify any contracting party¹s right to
challenge the other party¹s interpretation of that language. Nor
does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the
scope
of ICANN's mission nor to modify any contracting party¹s right to
challenge the other party¹s interpretation of contractual language if
they think enforcement actions are expanding the scope of ICANN's
mission.
=========================================================
========
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================================================================= 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. ================================================================= ================================================================= 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. =================================================================
I meant a case based on the language itself, absent a showing of actual harm/material affect based on the way ICANN is interpreting the provision J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: <Silver>, Bradley <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> Date: Tuesday, December 1, 2015 at 3:50 PM To: "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Some context for my tweaks – I don’t know what is meant by a “free standing case”, and the words “without context” seem like a potentially broad carve out to the grandfathering language. The sentence was tweaked to clarify that the provisions of such agreement are “on their face”, within the mission. It also doesn’t prejudice the rights of any third party to seek redress under an IRP. No rights are expanded by this language. From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:45 PM To: Silver, Bradley; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Do not support. Becky’s original wording is better. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Tuesday, December 1, 2015 3:27 PM To: Mueller, Milton L; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Suggested tweak – It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN’s Mission. -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message-----
From: Burr, Becky [mailto:Becky.Burr@neustar.biz]
Sent: Tuesday, December 1, 2015 12:29 PM
To: Silver, Bradley; Mueller, Milton L; David Post
Cc: Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are
grandfathered?
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires. It
does not, however, modify any contracting party¹s right to challenge
the other party¹s interpretation of that language. It does not modify
the right of any party materially affected (as defined in the Bylaws)
by an action or inaction in violation ICANN¹s Bylaws to seek redress
through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz
On 12/1/15, 12:18 PM, "Silver, Bradley"
<Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>
wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message-----
From: Mueller, Milton L [mailto:milton@gatech.edu]
Sent: Tuesday, December 01, 2015 12:13 PM
To: Burr, Becky; David Post; Silver, Bradley
Cc: Thomas Rickert; Accountability Cross Community
Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message-----
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires.
It does not, however, modify any contracting party¹s right to
challenge the other party¹s interpretation of that language. Nor
does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the
scope
of ICANN's mission nor to modify any contracting party¹s right to
challenge the other party¹s interpretation of contractual language if
they think enforcement actions are expanding the scope of ICANN's
mission.
=========================================================
========
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>
=========================================================
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=========================================================
========
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================================================================= 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. ================================================================= ================================================================= 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. =================================================================
I think "on its face" expresses that thought more clearly and accurately than "without context". Or we could just put "itself" in that spot, since Becky's last email itself was clear. Greg On Tue, Dec 1, 2015 at 3:58 PM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
I meant a case based on the language itself, absent a showing of actual harm/material affect based on the way ICANN is interpreting the provision
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367 */* *neustar.biz* <http://www.neustar.biz>
From: <Silver>, Bradley <Bradley.Silver@timewarner.com> Date: Tuesday, December 1, 2015 at 3:50 PM To: "Mueller, Milton L" <milton@gatech.edu>, Becky Burr < becky.burr@neustar.biz>, David Post <david.g.post@gmail.com> Cc: Thomas Rickert <thomas@rickert.net>, Accountability Community < accountability-cross-community@icann.org>
Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
Some context for my tweaks –
I don’t know what is meant by a “free standing case”, and the words “without context” seem like a potentially broad carve out to the grandfathering language. The sentence was tweaked to clarify that the provisions of such agreement are “on their face”, within the mission. It also doesn’t prejudice the rights of any third party to seek redress under an IRP.
No rights are expanded by this language.
*From:* Mueller, Milton L [mailto:milton@gatech.edu <milton@gatech.edu>] *Sent:* Tuesday, December 01, 2015 3:45 PM *To:* Silver, Bradley; Burr, Becky; David Post *Cc:* Thomas Rickert; Accountability Cross Community *Subject:* RE: [CCWG-ACCT] Minority statements inclusion in report
Do not support. Becky’s original wording is better.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Silver, Bradley *Sent:* Tuesday, December 1, 2015 3:27 PM *To:* Mueller, Milton L; Burr, Becky; David Post *Cc:* Thomas Rickert; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Minority statements inclusion in report
Suggested tweak –
It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN’s Mission.
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu <milton@gatech.edu>] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
Acceptable to me, thanks. David? Malcolm?
--MM
-----Original Message-----
From: Burr, Becky [mailto:Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>]
Sent: Tuesday, December 1, 2015 12:29 PM
To: Silver, Bradley; Mueller, Milton L; David Post
Cc: Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are
grandfathered?
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires. It
does not, however, modify any contracting party¹s right to challenge
the other party¹s interpretation of that language. It does not modify
the right of any party materially affected (as defined in the Bylaws)
by an action or inaction in violation ICANN¹s Bylaws to seek redress
through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz
On 12/1/15, 12:18 PM, "Silver, Bradley"
<Bradley.Silver@timewarner.com>
wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message-----
From: Mueller, Milton L [mailto:milton@gatech.edu <milton@gatech.edu>]
Sent: Tuesday, December 01, 2015 12:13 PM
To: Burr, Becky; David Post; Silver, Bradley
Cc: Thomas Rickert; Accountability Cross Community
Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message-----
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires.
It does not, however, modify any contracting party¹s right to
challenge the other party¹s interpretation of that language. Nor
does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the
scope
of ICANN's mission nor to modify any contracting party¹s right to
challenge the other party¹s interpretation of contractual language if
they think enforcement actions are expanding the scope of ICANN's
mission.
=========================================================
========
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
=========================================================
========
=========================================================
========
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for the use of the
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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,
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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.
=========================================================
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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I think we should get rid of the words “without context” - the material affect test should apply in all cases J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: <Mueller>, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> Date: Tuesday, December 1, 2015 at 3:44 PM To: "Silver, Bradley" <Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Do not support. Becky’s original wording is better. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Tuesday, December 1, 2015 3:27 PM To: Mueller, Milton L; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Suggested tweak – It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN’s Mission. -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message-----
From: Burr, Becky [mailto:Becky.Burr@neustar.biz]
Sent: Tuesday, December 1, 2015 12:29 PM
To: Silver, Bradley; Mueller, Milton L; David Post
Cc: Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are
grandfathered?
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires. It
does not, however, modify any contracting party¹s right to challenge
the other party¹s interpretation of that language. It does not modify
the right of any party materially affected (as defined in the Bylaws)
by an action or inaction in violation ICANN¹s Bylaws to seek redress
through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz
On 12/1/15, 12:18 PM, "Silver, Bradley"
<Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>
wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message-----
From: Mueller, Milton L [mailto:milton@gatech.edu]
Sent: Tuesday, December 01, 2015 12:13 PM
To: Burr, Becky; David Post; Silver, Bradley
Cc: Thomas Rickert; Accountability Cross Community
Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message-----
It means that the parties who entered into existing contracts
intended (and
intend) to be bound by those agreements. It means that neither a
contracting party or anyone else should be able to bring a free
standing case that the language, without context, is ultra vires.
It does not, however, modify any contracting party¹s right to
challenge the other party¹s interpretation of that language. Nor
does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the
scope
of ICANN's mission nor to modify any contracting party¹s right to
challenge the other party¹s interpretation of contractual language if
they think enforcement actions are expanding the scope of ICANN's
mission.
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I agree. I think Bradley's suggestion (adding "on its face") also works. "... It means that neither a contracting party nor anyone else should be able to bring a case that the language of such agreements is, on its face, ultra vires. ..." That would I think clarify that the IRP should reject an attempt to argue that ICANN's entering into sec. 3.18 was ultra vires; but it preserves the ability to challenge ICANN's interpretation/enforcement of 3.18 (or other provisions) as being outside the Mission. David At 04:09 PM 12/1/2015, Burr, Becky wrote:
I think we should get rid of the words without context - the material affect test should apply in all cases
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 / <http://www.neustar.biz>neustar.biz
From: <Mueller>, Milton L <<mailto:milton@gatech.edu>milton@gatech.edu> Date: Tuesday, December 1, 2015 at 3:44 PM To: "Silver, Bradley" <<mailto:Bradley.Silver@timewarner.com>Bradley.Silver@timewarner.com>, Becky Burr <<mailto:becky.burr@neustar.biz>becky.burr@neustar.biz>, David Post <<mailto:david.g.post@gmail.com>david.g.post@gmail.com> Cc: Thomas Rickert <<mailto:thomas@rickert.net>thomas@rickert.net>, Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
Do not support. Beckys original wording is better.
From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Tuesday, December 1, 2015 3:27 PM To: Mueller, Milton L; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
Suggested tweak
It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting partys right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANNs Mission.
-----Original Message----- From: Mueller, Milton L [<mailto:milton@gatech.edu>mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message----- From: Burr, Becky [<mailto:Becky.Burr@neustar.biz>mailto:Becky.Burr@neustar.biz] Sent: Tuesday, December 1, 2015 12:29 PM To: Silver, Bradley; Mueller, Milton L; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are grandfathered? It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. It does not modify the right of any party materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <<http://www.neustar.biz>http://www.neustar.biz>
On 12/1/15, 12:18 PM, "Silver, Bradley" <<mailto:Bradley.Silver@timewarner.com>Bradley.Silver@timewarner.com> wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message----- From: Mueller, Milton L [<mailto:milton@gatech.edu>mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 12:13 PM To: Burr, Becky; David Post; Silver, Bradley Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message----- It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. Nor does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the scope of ICANN's mission nor to modify any contracting party¹s right to challenge the other party¹s interpretation of contractual language if they think enforcement actions are expanding the scope of ICANN's mission.
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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 *******************************
Can we have this new language/guidance included in the 3rd draft report? And Becky's side-by-side of the evolution of the Mission statement, which is included in Annex 5, references Becky's "picket fence" side-by-side, but that document is not included in the report. It should be added to Annex 5 too, no? It is attached. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Tuesday, December 1, 2015 5:01 PM To: Burr, Becky Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report I agree. I think Bradley's suggestion (adding "on its face") also works. "... It means that neither a contracting party nor anyone else should be able to bring a case that the language of such agreements is, on its face, ultra vires. ..." That would I think clarify that the IRP should reject an attempt to argue that ICANN's entering into sec. 3.18 was ultra vires; but it preserves the ability to challenge ICANN's interpretation/enforcement of 3.18 (or other provisions) as being outside the Mission. David At 04:09 PM 12/1/2015, Burr, Becky wrote: I think we should get rid of the words "without context" - the material affect test should apply in all cases 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<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=CwMFAw...> From: <Mueller>, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> Date: Tuesday, December 1, 2015 at 3:44 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Do not support. Becky's original wording is better. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Tuesday, December 1, 2015 3:27 PM To: Mueller, Milton L; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Suggested tweak - It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party's right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN's Mission. -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message----- From: Burr, Becky [mailto:Becky.Burr@neustar.biz ] Sent: Tuesday, December 1, 2015 12:29 PM To: Silver, Bradley; Mueller, Milton L; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are grandfathered? It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. It does not modify the right of any party materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=CwMFAw&c=QCEPhmH9WJ8wFC_LYDIWIQ&r=_yIH0j711TdLk87MBYWQ4A&m=y1jd_DWq8lA3BfIqokSK1EHrrbMz87a1HJ0t_oP9yXA&s=yTiK8palEQzzhkyHJBKfGtYCsXwxj32jzIaDZ7rKneI&e=>>
On 12/1/15, 12:18 PM, "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 12:13 PM To: Burr, Becky; David Post; Silver, Bradley Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message----- It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. Nor does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the scope of ICANN's mission nor to modify any contracting party¹s right to challenge the other party¹s interpretation of contractual language if they think enforcement actions are expanding the scope of ICANN's mission.
========================================================= ========
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>
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========================================================= ======== 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. ========================================================= ========
================================================================= 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. ================================================================= ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMFAw&c=QCEPhmH9WJ8wFC_LYDIWIQ&r=_yIH0j711TdLk87MBYWQ4A&m=y1jd_DWq8lA3BfIqokSK1EHrrbMz87a1HJ0t_oP9yXA&s=6eHo3q5tOHnX4d2lQhRkQiSUsGlMvXeWghqTvl3UXpQ&e=>book (Jefferson's Moose) http://tinyurl.com/c327w2n <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0...> music http://tinyurl.com/davidpostmusic <https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmus...> publications etc. http://www.davidpost.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25C2-2...> *******************************
I am going through and making notes about odds and ends that need to be taken care of, and this is on the list J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: <Wilson>, Christopher <cwilson@21cf.com<mailto:cwilson@21cf.com>> Date: Wednesday, December 2, 2015 at 2:08 PM To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Can we have this new language/guidance included in the 3rd draft report? And Becky’s side-by-side of the evolution of the Mission statement, which is included in Annex 5, references Becky’s “picket fence” side-by-side, but that document is not included in the report. It should be added to Annex 5 too, no? It is attached. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of David Post Sent: Tuesday, December 1, 2015 5:01 PM To: Burr, Becky Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report I agree. I think Bradley's suggestion (adding "on its face") also works. "... It means that neither a contracting party nor anyone else should be able to bring a case that the language of such agreements is, on its face, ultra vires. ..." That would I think clarify that the IRP should reject an attempt to argue that ICANN's entering into sec. 3.18 was ultra vires; but it preserves the ability to challenge ICANN's interpretation/enforcement of 3.18 (or other provisions) as being outside the Mission. David At 04:09 PM 12/1/2015, Burr, Becky wrote: I think we should get rid of the words “without context” - the material affect test should apply in all cases 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<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=CwMFAw...> From: <Mueller>, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> Date: Tuesday, December 1, 2015 at 3:44 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> >, David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com> > Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community < accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Do not support. Becky’s original wording is better. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Tuesday, December 1, 2015 3:27 PM To: Mueller, Milton L; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report Suggested tweak – It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face, are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN’s Mission. -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 3:02 PM To: Burr, Becky; Silver, Bradley; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report Acceptable to me, thanks. David? Malcolm? --MM
-----Original Message----- From: Burr, Becky [mailto:Becky.Burr@neustar.biz ] Sent: Tuesday, December 1, 2015 12:29 PM To: Silver, Bradley; Mueller, Milton L; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
I have no problem providing additional guidance to the drafters:
What does it mean that the language of these agreements are grandfathered? It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. It does not modify the right of any party materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN¹s Mission.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz <http://www.neustar.biz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=CwMFAw&c=QCEPhmH9WJ8wFC_LYDIWIQ&r=_yIH0j711TdLk87MBYWQ4A&m=y1jd_DWq8lA3BfIqokSK1EHrrbMz87a1HJ0t_oP9yXA&s=yTiK8palEQzzhkyHJBKfGtYCsXwxj32jzIaDZ7rKneI&e=>>
On 12/1/15, 12:18 PM, "Silver, Bradley" < Bradley.Silver@timewarner.com<mailto:Bradley.Silver@timewarner.com>> wrote:
Milton - who is the "other party" in your suggested amendment below?
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 12:13 PM To: Burr, Becky; David Post; Silver, Bradley Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message----- It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party¹s right to challenge the other party¹s interpretation of that language. Nor does it modify the scope of ICANN¹s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the scope of ICANN's mission nor to modify any contracting party¹s right to challenge the other party¹s interpretation of contractual language if they think enforcement actions are expanding the scope of ICANN's mission.
========================================================= ========
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>
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Whoever is proposing the ultra vires enforcement action
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Tuesday, December 1, 2015 12:19 PM To: Mueller, Milton L; Burr, Becky; David Post Cc: Thomas Rickert; Accountability Cross Community Subject: Re: [CCWG-ACCT] Minority statements inclusion in report
Milton - who is the "other party" in your suggested amendment below?
-----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Tuesday, December 01, 2015 12:13 PM To: Burr, Becky; David Post; Silver, Bradley Cc: Thomas Rickert; Accountability Cross Community Subject: RE: [CCWG-ACCT] Minority statements inclusion in report
-----Original Message----- It means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party or anyone else should be able to bring a free standing case that the language, without context, is ultra vires. It does not, however, modify any contracting party’s right to challenge the other party’s interpretation of that language. Nor does it modify the scope of ICANN’s Mission.
This is reassuring, Becky, but I want it to be clear.
Are you willing to add to the current report the following language:
The grandfathering statement, however, cannot be used to modify the scope of ICANN's mission nor to modify any contracting party’s right to challenge the other party’s interpretation of contractual language if they think enforcement actions are expanding the scope of ICANN's mission.
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participants (7)
-
Burr, Becky -
David Post -
Greg Shatan -
Mueller, Milton L -
Nigel Roberts -
Silver, Bradley -
Wilson, Christopher