I think that’s exactly right Ale, people think it could be beneficial to have these RVCs, but that this could conflict with the (anti) content regulation requirements in the bye-laws if you take a particularly narrow reading of those sections, which I’m guessing ICANN’s legal dept does.

 

This is obviously gTLD specific, and so arguably we don’t have a horse in this race, but I guess if it comes down to the question of us supporting (or at least not objecting to) a proposed bye-law amendment. Personally it seems like a reasonable and positive initiative which has led to the RVCs policy recommendation, and therefore we’d be amenable? I.e. it’s not the role of the ccNSO to block or veto things which other parts of the community need our support to make happen.

 

Conversely if we had strong ideological objections to content regulation then it’s best we signal that to the board before they put any more work into implementing the policy recommendation, as a bye-law amendment would be hard to get through if the community rose up against it.

 

From: Ccnso-council <ccnso-council-bounces@icann.org> On Behalf Of Alejandra Reynoso Barral via Ccnso-council
Sent: Tuesday, April 2, 2024 3:24 PM
To: Bart Boswinkel <bart.boswinkel@icann.org>
Cc: ccnso-council@icann.org
Subject: Re: [ccnso-council] FW: [CORRESPONDENCE] Tripti Sinha to Alejandra Reynoso - Reminder RE: PICs/RVCs Consultation

 

Caution: This is an external email and may be malicious. Please take extra care when clicking links or opening attachments.

 

Dear Councillors

 

This is a topic I'm not familiar with and I'd really appreciate the opinion of those who have been following this process more closely. 

 

After watching the recording of the plenary session at ICANN79 it seems to me that there is a concern on whether ICANN might be getting involved with content regulation, directly or indirectly, by enforcing contractual terms relating to future gTLD Registry Voluntary Commitments (RVCs) dealing with content; and if this is out of the scope of ICANN's mission according to the Bylaws.

 

My understanding is that these RVCs are proposed by the Registry and not by ICANN, nevertheless, they end up as part of the contract and ICANN's Contractual Compliance needs to ensure that ICANN's contracted parties fulfill the requirements set forth in their agreements with ICANN.

 

As stated in the previous letter from Tripti [page #2]: " The proposed implementation framework would limit ICANN’s direct involvement in restricting content within gTLDs. However, implementation of the content-related commitments recommended by the policy development process working group 4 could still place ICANN in a position of enforcing contract requirements that have the effect of restricting content in gTLDs. This creates a risk of successful challenges asserting that content-related commitments in future Registry Agreements are beyond the scope of ICANN’s Mission. Further, there are political, practical, and reputational risks associated with ICANN negotiating and entering into contract provisions that have the effect of restricting content in gTLDs."

 

My first impression regarding what we are being asked to provide feedback is the following:

  1. It seems strange that we [ccNSO] give feedback on a framework that we have not participated in. Isn't it out of our scope? From previous letter from Tripti [page #9]: "Please note one key difference between this proposed framework and the approach taken in the 2012 round of the New gTLD Program: This framework would require all applicants who propose to enter into RVCs and/or community gTLD commitments to include a detailed process for enforcement of such commitments in their Registry Agreements. This framework would require the applicant to engage, at the registry operator’s own expense, an independent third party to periodically audit their compliance with any content-related commitments and certify such compliance to ICANN. This third party must be identified when the commitment is proposed for evaluation, and is subject to approval by ICANN during the evaluation process"
  2. Supporting ICANN’s enforcement of contractual terms that could be argued to regulate content in gTLDs. I'm not sure if we can support or not such a thing (scope), but we certainly express our opinion on ICANN's mission.
  3. Supporting an amendment to the ICANN Bylaws to clarify ICANN’s ability to do what was stated above in 2. Without the potential text to be used, it's very hard to say if we will support a Fundamental Bylaw change in advance.

Please let me know your thoughts as soon as possible, since we are requested to reconsider by 12 April 2024.

 

Best regards,
Alejandra


*******************************************
Work like you don't need the money.
Love like you've never been hurt.
Dance like nobody's watching.
Sing like nobody's listening.
And live like it's Heaven on Earth.
*******************************************

 

 

On Fri, Mar 29, 2024 at 1:26 PM Bart Boswinkel via Ccnso-council <ccnso-council@icann.org> wrote:

Dear all,

Please find included a letter from Tripti Sinha regarding the Community Consultation on PICs/RVCs in response to the Council letter dated 30 January 2024. The Council is requested to reconsider by  12 April 2024 its initial response and “provide input to the questions, particularly regarding the consultation topic 2 concerning the ICANN Bylaws. 

The purpose of this consultation is twofold: 

  1. To solicit community feedback on a proposed framework for the implementation of these recommended commitments in the New gTLD Program: Next Round. 
  2. To ensure the Board understands whether the broader ICANN community supports ICANN’s enforcement of contractual terms that could be argued to regulate content in gTLDs and, if so, whether the community also supports an amendment to the ICANN Bylaws to clarify ICANN’s ability to do so.” 

 

The Council letter was sent 30 January 2024 and can be found here: https://ccnso.icann.org/sites/default/files/field-attached/sinha-to-reynoso-30jan24-en.pdf . This letter was a response to the letter from Tripti Sinha dated 7 December 2023 (https://ccnso.icann.org/sites/default/files/field-attached/sinha-to-reynoso-07dec23-en.pdf.

On behalf of Alejandra,

Kind regards,

Bart

 

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