Hi Jean-Jacques,



The topic of jurisdiction was discussed in Istanbul as part of the Face to Face meetings, there seemed to be broad consensus on not looking at jurisdiction at the moment (i.e before the IANA transition occurs) unless it was 'for cause' due to a limitation of California law. But that it would be examined as a topic in the longer term accountability mechanism being developed. There seemed to be support for it being examined in that fashion and certainly wasn’t something that was dismissed out of hand as something that wasn’t on the table long term.



Probably not the answer you want but just to reassure you that it has been on the table for discussion recently and what my feel of the consensus in the room was.



James Gannon



-----Original Message-----

From: NCSG-Discuss [mailto:[log in to unmask]] On Behalf Of Subrenat, Jean-Jacques

Sent: Thursday, April 23, 2015 5:15 PM

To: [log in to unmask]

Subject: Re: Public Comments on IANA proposal



Hello,



in addition, I would point out another aspect which was mentioned by members of the community in the early stages of the CCWG and CWG, but which seems to have faded away: jurisdiction.



Whatever legal construct is retained (wholly-owned subsidiary of ICANN or similar), there remains a fundamental issue: in all the scenarios currently envisaged, the PTI would be a US entity under California law, answerable to federal and State laws, and for that reason would remain under the ultimate supervision of US public authority (NTIA or another) and the attentive to the will of the US Congress.



I am probably expressing a minority view, and it seems very unlikely that the current discussion would envisage making PTI a truly global entity, located in a jurisdiction outside the USA. But an alternative, no doubt more widely acceptable proposal, would be to create the two oversight bodies, PRF and CSC, in a non-US jurisdiction. Such a solution would allow the operational part to dwell in the US, while providing a truly global oversight under international law (say in Geneva), rather than only US and California law.



Jean-Jacques Subrenat.

















----- Mail original -----

De: "David Post" <[log in to unmask]>

À: [log in to unmask]

Envoyé: Jeudi 23 Avril 2015 17:27:27

Objet: Re: Public Comments on IANA proposal



Milton/All 



I'm sure this was talked about at length during the development of the proposal, but it does seem rather odd to me that "functional and legal separation" between the IANA naming functions and ICANN (which I agree is an important principle) has been implemented in this proposal by means of setting up a new corporation that is a wholly-owned subsidiary of ICANN's (with an ICANN-designated Board - sec III.A.i.b). Can you say a few words as to why you think that provides for the necessary independence? The PTI Board will be answerable to the ICANN Board, because ICANN is the only "member" of PTI - ?? 



David 





The At 10:58 AM 4/23/2015, Milton L Mueller wrote: 





Dear NCSG-ers: 



The domain names part of the IANA transition is finally being formed. A draft proposal was released yesterday and it is open for public comment. 



In my view, this is a big win for accountability. By legally separating the IANA functions operator from ICANN, it will be easier to hold ICANN’s board and staff accountable for the policy making process, and easier to hold the post-transition IANA accountable for its performance of the IANA functions. Lines of responsibility will be more direct, and policy more clearly separated from implementation. 



The proposal also promotes accountability by creating a periodic review process that could allow the names community to “fire” the existing IANA if there was great dissatisfaction with its performance. This enhances the accountability sought by the numbers and protocols communities as well as creating separability for the names community for the first time. 



The legal affiliate structure seems to have found the middle ground in the debate over ICANN’s role in the IANA functions. Although IANA will still be a subsidiary of ICANN, Inc., thus defusing any concerns about creating new organizations, it will have a separate board and a clearer line of demarcation between the politics of ICANN the policy maker and the technical coordination functions provided by the IANA functions operator. 



You can read the (very long) proposal here: 



https ://www.icann.org/news/announcement-2015-04-22-en 



You can comment on it here: 



https://www.icann.org/public-comments/cwg-stewardship-draft-proposal-2015-04-22-en 







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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

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