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