At 02:41 PM 11/30/2015, Silver, Bradley wrote: >I cannot imagine how anyone could force ICANN to >interpret and enforce 3.18 or any other >provision in a manner that doesn't comport with >ICANN's mission, particularly since we have >language that says: ICANN shall act strictly in >accordance with, and only as reasonably >appropriate to achieve its Mission – ii.e. to >ensure the stable and secure operation of the >Internet's unique identifier systems. Any and >all actions taken under Section 3.18 or the RAA >do not suddenly become immunized from scrutiny >by acknowledging that the RAA is within ICANN's mission. Here's what I can easily imagine: Registrar XYZ is brought before the PICDRP, in a complaint brought by the Consumer Federation of Mexico, which asserts that XYZ is violating the mandatory PICs because it does not enforce the contract term prohibiting domain name holders from engaging in "activity contrary to applicable law"; specifically, it does not revoke domain names that are being used to sell fraudulently labeled goods. The Registrar responds by saying: revoking our accreditation on those grounds is improper, because policing consumer fraud is outside of ICANN's Mission. The complainant responds: But the provisions of the Registry Agreement and the RAA (including the PICs, and Registy XYZ's obligation to include in their agreements with Registered Name Holders prohibiting them "from ... engaging in activity contrary to applicable law," and "providing . . . consequences for such activities including suspension of the domain name") been "grandfathered" into the Mission - i.e. deemed to be within the scope of ICANN's powers. That seems to me to be a perfectly reasonable way to read the "grandfathering" language. It's not a case of forcing ICANN to enforce the contracts in a manner that "doesn't comport with the Mission" - it's a way that ICANN can use the language of the existing agreements to expand the definition of and boundaries around the Mission. I take it you would say: that's not what the Proposal means when it says that "the language of existing registry and registrar agreements should be grandfathered" - that the language is NOT meant to say that ICANN I'm glad to hear that - but if it doesn't mean that, what does it mean? You admit that the new language "acknowledg[es] that the RAA is within ICANN's mission," but you assert that that doesn't "immunize actions taken under the RAA from scrutiny." But I think it certainly could be read to do just that. In fact, that strikes me as the natural reading of the language. If we're saying that the provisions of the RAA are within ICANN's mission, how can ICANN's actions to enforce those provisions ever be outside the Mission? That doesn't make sense to me - and so it does indeed look, to me, like any actions ICANN takes pursuant to the provisions of the existing agreements are "immunized from scrutiny." David > >From: >[log in to unmask] >[mailto:[log in to unmask]] >On Behalf Of Mueller, Milton L >Sent: Monday, November 30, 2015 2:13 PM >To: Burr, Becky; David Post; Accountability Cross Community >Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas Rickert >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > >Becky, David >We did discuss this but there are obviously >still loose ends that need to be resolved. > >You yourself say: > >The problem, of course, is that not all illegal >activity threatens the stability and security of >the DNS; behavior that is illegal in some >jurisdictions is not illegal in all >jurisdictions; and the legality/illegality of a >particular activity is generally a determination >left to sovereigns or courts. So, what >constitutes an “ appropriate response” is >going to vary from case to case. Theoretically, >ICANN could choose to enforce the requirement in >a manner that exceeded the scope of its >authority, e.g., it could begin to say that >registrars who do not suspend registrations in >response to allegations that an underlying site >is defamatory are in breach. But I think 3.18 >itself is a legitimate contract provision that >ICANN should be able to enforce. > >MM: To me, this means that we have to find a >wording that ensures that attempts by ICANN (or >by litigants external to ICANN) to force >ICANN to interpret and enforce this 3.18 in a >way that extends iits mission outside the >boundaries can be stopped. Your current proposal >makes it sound like a blanket endorsement of anything 3.18 might be used to do > > >================================================================= >Reminder: Any email that requests your login >credentials or that asks you to click on a link >could be a phishing attack. If you have any >questions regarding the authenticity of this >email or its sender, please contact the IT >Service Desk at 212.484.6000 or via email at ><mailto:[log in to unmask]>[log in to unmask] > > >================================================================= > >=================================================================This >message is the property of Time Warner Inc. and >is intended only for the use of theaddressee(s) >and may be legally privileged and/or >confidential. If the reader of this messageis >not the intended recipient, or the employee or >agent responsible to deliver it to the >intendedrecipient, he or she is hereby notified >that any dissemination, distribution, printing, >forwarding,or any method of copying of this >information, and/or the taking of any action in >reliance onthe information herein is strictly >prohibited except by the intended recipient or >those to whomhe or she intentionally distributes >this message. If you have received this >communication inerror, please immediately notify >the sender, and delete the original message and >any copiesfrom your computer or storage system. >Thank you.================================================================= ******************************* 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 *******************************