Hi,
It was discussed in one of the meetings and prevented a lot of
complexities about changed bylaws affecting already executed contracts.
I did not contribute to the conversation but do support the idea of
grandfathering.
Insisting on all changes applying to all existing contracts will
probably end up a non starter for many. Partly because no one will know
the implications and it will cause a degree of instability. The new
provisions will apply when contracts are next re negotiated.
avri
On 30-Nov-15 13:32, David Post wrote:
>
> 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 Internet’s unique 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 is fully in line with the official comments
>> submitted by the Noncommercial Stakeholders Group during the last
>> public comment period.
>> --MM
>>
>> *From:* [log in to unmask]
>> [mailto:[log in to unmask]
>> <mailto:[log in to unmask]>] *On Behalf
>> Of *Robin Gross
>> *Sent:* Sunday, November 29, 2015 6:41 PM
>> *To:* Thomas Rickert
>> *Cc:* [log in to unmask] 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 “advisory” role to a
>> “decision making” role over fundamental matters at ICANN,
>> including its governance. Consequently the proposal marginalizes the
>> role of Supporting Organizations (SO’s) compared to today’s ICANN
>> governance structure. The degree of governmental empowerment over
>> ICANN resulting from the proposal’s community mechanism is
>> dangerous to the success of the proposal’s political acceptance as
>> well as to its ultimate 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 AC’s as determined by relative board
>> appointments. Instead, the proposed community mechanism elevates the
>> AC’s relative to the SO’s compared with today’s balance on
>> ICANN's board of directors, 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 the Supporting Organizations
>> in ICANN’s key decisions 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 community mechanism in the 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
>> inherent in changing those roles with a “one size fits all”
>> approach to critical decision making.
>>
>> Additionally, I object to the proposed departure from ICANN’s
>> typical 30-day public comment period on the 3rd report for
>> CCWG-Accountability. The 3rd report’s public comment only allows
>> 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 <[log in to unmask]
>> <mailto:[log in to unmask]>> 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 <http://rickert.net/>
>>
>> Am 29.11.2015 um 21:37 schrieb Robin Gross <[log in to unmask]
>> <mailto:[log in to unmask]>>:
>>
>> 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
>> <[log in to unmask] <mailto:[log in to unmask]>> 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
>>
>> [log in to unmask]
>> <mailto:[log in to unmask]>
>>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>>
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> [log in to unmask]
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
> *******************************
> David G Post - Senior Fellow, Open Technology Institute/New America
> Foundation
> blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
> <http://www.washingtonpost.com/people/david-post>book (Jefferson's
> Moose) http://tinyurl.com/c327w2n
> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0>
> music http://tinyurl.com/davidpostmusic
> <http://tinyurl.com/davidpostmusic> publications etc.
> http://www.davidpost.com
> <http://www.davidpost.com%A0%A0%A0%A0%A0%A0%A0/>
> *******************************
---
This email has been checked for viruses by Avast antivirus software.
https://www.avast.com/antivirus
|
