See Malcolm’s discussion below, which clarifies a lot.
However, I do not agree that we can rely entirely on the proposed bylaw change (which is actually paragraph 187 in the proposal, not paragraph 188).
I think we should make an issue of this in our comments and insist that the language “"provided,
of course, that the policy itself being enforced contractually is one that lies within ICANN's Mission" be included in the final proposal
--MM
From: Milton Mueller [mailto:[log in to unmask]]
Sent: Thursday, August 20, 2015 3:34 PM
To: Mueller, Milton L <[log in to unmask]>
Subject: Fwd: FW: "Limitations on ICANN's contracting authority."
---------- Forwarded message ----------
From: Malcolm Hutty <[log in to unmask]<mailto:[log in to unmask]>>
Date: Wed, Aug 19, 2015 at 2:04 PM
Subject: Re: FW: "Limitations on ICANN's contracting authority."
To: Paul Rosenzweig <[log in to unmask]<mailto:[log in to unmask]>>
Cc: Milton L Mueller <[log in to unmask]<mailto:[log in to unmask]>>
On 19/08/2015 17:50, Paul Rosenzweig wrote:
>
> I’ve exceeded my understanding of this issue – do you have anything to
> add that might assist in the discussion.
I can explain the history of this text, if you like.
As Milton says, the language
"Without in any way limiting the foregoing absolute
prohibition, ICANN shall not engage in or use its powers to
attempt the regulation of services that use the Internet's
unique identifiers, or the content that they carry or
provide."
was inserted precisely to make clear that ICANN could not use its
contracting power with Registries and Registrars as a lever to engage in
general regulation of Internet content and services.
The concern that ICANN might one day try to do this, and should be
restrained from doing it, was recorded in Stress Test #23.
When this proposal was put out for the First Public Comment, the CCWG
received input from some commercial stakeholders that expressed concern
that this would interfere with the existing Contract Compliance
programme. From memory, the stakeholders who raised this concern were
members of the Business and Intelletual Property constituencies, and the
Business Constituency itself supported this intervention.
This prompted a discussion within the working party: what exactly were
these stakeholders worried about? Did this intervention mean that they
wanted ICANN to be able to regulate content and services generally?
Steve Delbianco, on behalf of the Business Constituency, offered the
example of .bank: as part of the creation of that TLD, it was proposed
by the prospective registry that only registered banks would be allowed
to register within that domain. This would form part of the Registry
agreement, and the successful Registry would not be allowed to change
their policy later and turn .bank into a free-for-all open registration
policy domain. Should they try to do so, ICANN would enforce the
Registry agreement, even though the restriction on registration in .bak
originated not in an ICANN PDP policy, but in the voluntary proposal of
the gTLD applicant. Steve said that the Business Constituency wanted to
ensure that this enforcement would continue, and that the abovementioned
text in the Bylaws should not prevent ICANN from stopping the Registry
from changing its policy on registration after the TLD's initial delegation.
(Some of) those that had proposed the abovementioned text responded that
this was not intended to interfere with that behaviour by ICANN. They
drew a distinction between using the Registry contract to enforce the
terms on which the initial delegation was made, and introducing new
policies intended to regulate the behaviour of end-user registrants.
They (we) argued that defining the purpose of each gTLD, and creating
policies so that those gTLDs achieved their purpose, was clearly within
the scope of ICANN's proper Mission. Accordingly, enforcing those
policies through ICANN's contracting power remains within ICANN's
authorised powers. By contrast, if it were to create new policies to
which registrants must aide, not for the purpose of defining the scope
of a given domain, but with the intention of controlling user behaviour
generally - that is, justified not by the need to ensure an open,
interoperable, reliable and secure DNS but by its conception of the
public interest more broadly, then that would indeed be outside ICANN's
Mission and this clause would indeed restain ICANN from using its
contracting authority in that manner.
Accordingly, we argued, the concern raised by the Business Constituency
was unwarranted: this clause would not act as a restain on ICANN's
contracting authority as a means of enforcing ICANN's policy - provided,
of course, that the policy itself is one that lies within ICANN's
Mission. It was agreed that a note to this effect would be made in the
Second Public Comment draft, and that this would be given as the reason
why we had not changed the text to which some stakeholders objected.
That is how paragraph 158 came about.
In my view the omission of this last qualification in paragraph 158 of
the public comment is indeed confusing (i.e. the omission of "provided,
of course, that the policy itself being enforced contractually is one
that lies within ICANN's Mission"). I can see how, lacking this
qualification, the paragraph gave rise to Milton's "WTF moment".
However, this is only explanatory text: the draft bylaw language is
paragraph 188. The only real concern I would have would be if the
lawyers, working from paragraph 158, sought to redraft paragraph 188.
I hope that helps,
Kind Regards,
Malcolm.
--
Malcolm Hutty | tel: +44 20 7645 3523<tel:%2B44%2020%207645%203523>
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