[Chapter-delegates] FW: Ethos/PIR/ISoc statements regarding ICANN's rejection of the sale of PIR/.ORG

[Richard Hill]

Dear Andrew,

Thank you for this. Please see embedded comments below.

Best,
Richard

> -----Original Message-----
> From: Chapter-delegates [mailto:chapter-delegates-
> bounces at elists.isoc.org] On Behalf Of Andrew Sullivan via Chapter-
> delegates
> Sent: Monday, May 4, 2020 21:12
> To: chapter-delegates at elists.isoc.org
> Subject: Re: [Chapter-delegates] FW: Ethos/PIR/ISoc statements
> regarding ICANN's rejection of the sale of PIR/.ORG
> 
> Dear colleagues,

SNIP

> On Fri, May 01, 2020 at 09:46:38AM +0200, Richard Hill via Chapter-
> delegates wrote:
> 
> > 1) ISOC states: "we are disappointed that ICANN has acted as a
> regulatory body it was never meant to be, as laid out in Article 1 of
> its bylaws"
> >
> > Who made this interpretation of ICANN's mandate? Shouldn't such an
> interpretation, in this context, have been consulted with the
> membership?
> >
> 
> I am surprised that it should be in any way controversial that ICANN
> was never meant to be a regulatory body.  

I will comment on Article 1 below.

But first I'd like to make a more fundamental point. ICANN exercised a
contractual clause in order to refuse the requested change of control of
PIR.

That's got nothing to do with "regulation" and everything to do with the
powers that PIR had agreed, by contract, that ICANN would have with regard
to requests for change of control.

If PIR thinks that ICANN did not abide by the terms of the contract in
question, then PIR can, pursuant to the contract, invoke mediation and
arbitration.

So I don't see the relevance of discussing whether or not ICANN is a
"regulator". 

>The Article 1 text is this:
> 
> 	(c) ICANN shall not regulate (i.e., impose rules and restrictions
> 	on) services that use the Internet's unique identifiers or the
> 	content that such services carry or provide, outside the express
> 	scope of Section 1.1(a). For the avoidance of doubt, ICANN does
> 	not hold any governmentally authorized regulatory authority.

Yes, ICANN is not a government regulator. And yes, ICANN will not impose
rules and restrictions outside the scope of Section 1.1(a).

But Section 1.1(a) mandates ICANN to impose lots of rules and restrictions,
some example being the UDRP, vertical separation, etc.

As the said Section says: "The issues, policies, procedures, and principles
addressed in Annex G-1 and Annex G-2 with respect to gTLD registrars and
registries shall be deemed to be within ICANN's Mission."

I won't copy-paste G-1 and G-2 here, because they are pretty long. Here are
the URLs:

https://www.icann.org/resources/pages/governance/bylaws-en#annexG1 

https://www.icann.org/resources/pages/governance/bylaws-en/#annexG2 

Let's not forget that ICANN was created specifically to impose those rules
and restrictions.

> 
> I don't believe we have a policy requiring any statement by the
> Internet Society to be made in consultation with members.  That is a
> requirement for policies, of course, under the PDP.  But I do not
> believe the above qualifies as a policy statement in that way.

Let's agree to disagree. In my view, the statement that ICANN acted outside
its mandate IS a policy statement that should have been consulted with the
membership.