Yes, Tamir is right, these so-called “mutual agreements” between contracted parties and ICANN could open the door to ANY kind of regulation and would completely
nullify any mission limitation. ICANN could tactily threaten to withhold benefits or favors from registrars or registries who did not comply with these “outside the box” requirements.
I don’t get it. ICANN should NOT need to regulate content and services in order to enforce compliance with its legitimate rules. E.g., if a registrar is breaking
its rules in the RAA ICANN can withdraw accreditation, it can fine the registrar, it can sue them for breach of contract, it can do all kinds of things. Why does it need to contractually assert control over content and services?
From: NCSG-Discuss [mailto:[log in to unmask]]
On Behalf Of Tamir Israel
Sent: Wednesday, August 19, 2015 1:08 PM
To: [log in to unmask]
Subject: Re: [NCSG-Discuss] "Limitations on ICANN's contracting authority."
But this doesn't say anything about mutual agreement and, in any case, might not that be almost worse, because you run the risk of moving to 'voluntary' mutual agreements as a way of getting around issues that
can't get resolved through the core ICANN policy-making processes.
Is there a clear process for generating mutual agreement? We've definitely been stung by 'voluntary' before....
Best,
Tamir
On 8/19/2015 12:59 PM, James Gannon wrote:
Sorry guys Im only catching up on this now.
So yes that wording is terrible and needs to be updated.
The actual meaning behind this was as a result of a comment from the BC in PC1 that sought to allow ICANN compliance to enforce restrictions that may be outside of its mission in cases where those restrictions were as a result of mutual
agreement between the registry and ICANN. We fought against that path for obvious reasons, and the response from the BC was that without their language they felt that ICANN wouldn’t be able to enforce its rightful compliance mission through its ability to
contract with registries.
Many of us disagreed with that and felt that the language as it stands now does not prohibit or hinder ICANN from entering into contracts where they have a compliance responsibility.
But I agree that the language does not reflect that adequately.
But if that's the meaning of the laguage, shouldn't we still be worried about it? I would think that the mission statement SHOULD "prohibit ICANN from imposing other obligations on registries/registrars," no? That is, ICANN should not
be permitted to impose obligations on registries/registrars, by contract or otherwise, obligations that are not within its mission - doesn't this language cut dramatically against that?
David
At 04:04 PM 8/18/2015, Paul Rosenzweig wrote:
Ahhh … in context I think this is clear (or at least it is to me). The concern was that by restricting ICANN’s mission and prohibiting it from regulating services or content we might inadvertently be also prohibiting ICANN for imposing
other obligations on registries/registrars. All this is intended to say (and the language may be inartful) is that the mission limitation on regulation of services and content does not OTHERWISE limit the remaining contractual authorities of ICANN. That,
at least, was the thrust of the conversation in Paris and that is what this summary in para 158 is intended to capture.
Paul
Paul Rosenzweig
[log in to unmask]
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066
Link to my PGP Key
From: Mueller, Milton L [ mailto:[log in to unmask]]
Sent: Tuesday, August 18, 2015 2:54 PM
To: [log in to unmask]
Subject: "Limitations on ICANN's contracting authority."
I was reading the CCWG proposal and had one of those WTF moments….
Can someone who was in Paris or who was more involved in CCWG tell me what this means:
“The CCWG-Accountability …concluded that the prohibition on regulation of services that use the Internet’s unique identifiers or the content that
they carry or provide does not act as a restraint on ICANN’s contracting authority.”
WHAT???
Since ICANN regulates by contracts with registries and registrars, the prohibition on regulation of services that use the Internet’s unique identifiers or the content that they carry or provide had bloody well better limit ICANN’s ability to regulate services
and content via contracts, otherwise it doesn’t prohibit anything. Am I missing something here?
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
*******************************
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
*******************************