Dear Milton and Matthew,
If you read my piece, I am clear that change of jurisdiction was *not* 
the NTIA's goal.  In fact, they opposed change of jurisdiction of 
incorporation of ICANN or PTI.

So while that might possibly be key point that is forgotten, overlooked, 
or ignored, quite clearly I haven't done so.

Regards,
Pranesh

Matthew Shears <[log in to unmask]> [2016-06-30 10:07:16 +0300]:
> + 1
>
> Milton highlights a key point that is often forgotten, overlooked or
> ignored: "The purpose of the transition was to eliminate U.S.
> governments contractual control of ICANN and the US government's
> authority over all root zone changes.  That - and not a change of
> jurisdiction per se - was the goal."
>
> Matthew
>
>
> On 6/29/2016 6:51 PM, Mueller, Milton L wrote:
>> Pranesh
>> I am very willing to discuss jurisdiction and have volunteered for the
>> WS2 group that will discuss it. However, you are completely out of
>> touch with reality if you think any major change is going to happen
>> "before the transition."
>> The proposal before the NTIA retains ICANN's status as a California
>> Corporation and indeed creates a new California Corp. to handle PTI.
>> I disagree with your assertion that the transition is "meaningless"
>> unless the legal jurisdiction of ICANN's incorporation is changed. I
>> don't think you can justify that statement but for dialogue purposes I
>> encourage you to try.
>>
>> The purpose of the transition was to eliminate U.S. governments
>> contractual control of ICANN and the US government's authority over
>> all root zone changes.
>> That - and not a change of jurisdiction per se - was the goal. Those
>> are important objectives, and the current proposal before us achieves
>> them. If you do think it is meaningless then you are, objectively,
>> taking the side of Senator Cruz and other U.S. nationalist Republicans
>> who want to stop the transition and you will not get a movement away
>> from U.S. jurisdiction you will get the status quo, which is worse.
>>
>> The Montevideo statement did not call for a change of jurisdiction,
>> either, but rather "called for accelerating the globalization of ICANN
>> and IANA functions, towards an environment in which all stakeholders,
>> including all governments, participate on an equal footing."
>>
>> --MM
>>
>>> -----Original Message-----
>>> From: NCSG-Discuss [mailto:[log in to unmask]] On Behalf
>>> Of Pranesh Prakash
>>> Sent: Wednesday, June 29, 2016 5:18 AM
>>> To: [log in to unmask]
>>> Subject: Jurisdiction: The Taboo Topic at ICANN
>>>
>>> Dear all,
>>> In CIS's submissions to the WSIS process, to the ICG, to the
>>> CCWG-Acct, we
>>> have raised the multi-faceted issue of jurisdiction, and why dealing
>>> with that
>>> now (before the transition) is important.  Given that it hasn't been
>>> dealt with
>>> as part of WS1, I believe the "IANA transition"
>>> ends up being meaningless in terms of what it set out to achieve, and
>>> what
>>> were the goals laid down in the Montevideo Statement and in the
>>> NETmundial Statement.
>>>
>>> I believe civil society actors ought to discuss our positions on the
>>> topic of
>>> jurisdiction, which frankly hasn't really happened on this list.
>>>
>>> To instigate debate, I've written a long-ish piece on the topic:
>>> http://cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-
>>>
>>> at-icann
>>>
>>> Regards,
>>> Pranesh
>>>
>>>
>>>
>>> Jurisdiction: The Taboo Topic at ICANN
>>> ======================================
>>>
>>> In March 2014, the [US government announced] that they were going to end
>>> the contract they have with ICANN to run the [Internet Assigned Numbers
>>> Authority] (IANA), and hand over control to the “global multistakeholder
>>> community”. They insisted that the plan for transition had to come
>>> through a
>>> multistakeholder process and have stakeholders “across the global
>>> Internet
>>> community”.
>>>
>>> Why is the U.S. government removing the NTIA contract?
>>> ------------------------------------------------------
>>>
>>> The main reason for the U.S. government’s action is that it will get
>>> rid of a
>>> political thorn in the U.S. government’s side: keeping the contract
>>> allows
>>> them to be called out as having a special role in Internet governance
>>> (with
>>> the Affirmation of Commitments between the U.S.
>>> Department of Commerce and ICANN, the IANA contract, and the
>>> cooperative agreement with Verisign), and engaging in unilateralism with
>>> regard to the operation of the root servers of the Internet naming
>>> system,
>>> while repeatedly declaring that they support a multistakeholder model of
>>> Internet governance.
>>>
>>> This contradiction is what they are hoping to address. Doing away
>>> with the
>>> NTIA contract will also increase — ever so marginally — ICANN’s global
>>> legitimacy: this is something that world governments, civil society
>>> organizations, and some American academics have been asking for nearly
>>> since ICANN’s inception in 1998. For instance, here are some demands
>>> made
>>> [in a declaration by the Civil Society Internet Governance Caucus at
>>> WSIS, in
>>> 2005]:
>>>
>>>> “ICANN will negotiate an appropriate host country agreement to
>>>> replace its
>>> California Incorporation, being careful to retain those aspects of
>>> its California
>>> Incorporation that enhance its accountability to the global Internet
>>> user
>>> community.”ICANN’s decisions, and any host country agreement, must be
>>> required to comply with public policy requirements negotiated through
>>> international treaties in regard to, inter alia, human rights
>>> treaties, privacy
>>> rights, gender agreements and trade rules. … “It is also expected
>>> that the
>>> multi-stakeholder community will observe and comment on the progress
>>> made in this process through the proposed \[Internet Governance\]
>>> Forum.”
>>>
>>> In short: the objective of the transition is political, [not technical].
>>> In an ideal world, we *should* aim at reducing U.S. state control
>>> over the
>>> core of the Internet’s domain name system.[^1]
>>>
>>> It is our contention that **U.S. state control over the core of the
>>> Internet’s
>>> domain name system is *not* being removed** by the transition that is
>>> currently underway.
>>>
>>> Why is the Transition Happening Now?
>>> ------------------------------------
>>>
>>> Despite the U.S. government having given commitments in the past that
>>> were going to finish the IANA transition by “September 30, 2000”, (the
>>> [White Paper on Management of Internet Names and Addresses] states:
>>> “The U.S. Government would prefer that this transition be complete
>>> before
>>> the year 2000. To the extent that the new corporation is established and
>>> operationally stable, September 30, 2000 is intended to be, and
>>> remains, an
>>> ‘outside’ date.”) and later by “fall of 2006”,[^2] those turned out
>>> to be empty
>>> promises. However, this time, the transition seems to be going through,
>>> unless the U.S. Congress manages to halt it.
>>>
>>> However, in order to answer the question of “why now?” fully, one has to
>>> look a bit at the past.
>>>
>>> In 1998, through the [White Paper on Management of Internet Names and
>>> Addresses] the U.S. government [asserted it’s control over the root],
>>> and
>>> asserted — some would say arrogated to itself — the power to put out
>>> contracts for both the IANA functions as well as the ‘A’ Root (i.e.,
>>> the Root
>>> Zone Maintainer function that Network Solutions Inc. then performed, and
>>> continues to perform to date in its current avatar as Verisign). The
>>> IANA
>>> functions contract — a periodically renewable contract — was awarded to
>>> ICANN, a California-based non-profit corporation that was set up
>>> exclusively
>>> for this purpose, but which evolved around the existing IANA (to
>>> placate the
>>> Internet Society).
>>>
>>> Meanwhile, of course, there were criticisms of ICANN from multiple
>>> foreign
>>> governments and civil society organizations. Further, despite it being a
>>> California-based non-profit on contract with the government,
>>> domestically
>>> within the U.S., there was pushback from constituencies that felt
>>> that more
>>> direct U.S. control of the DNS was important.
>>>
>>> As Goldsmith and Wu summarize:
>>>
>>>> “Milton Mueller and others have shown that ICANN’s spirit of
>>>> “self-regulation” was an appealing label for a process that could be
>>>> more accurately described as the U.S. government brokering a
>>>> behind-the-scenes deal that best suited its policy preferences … the
>>>> United States wanted to ensure the stability of the Internet, to fend
>>>> off the regulatory efforts of foreign governments and international
>>>> organizations, and to maintain ultimate control. The easiest way to do
>>>> that was to maintain formal control while turning over day-to-day
>>>> control of the root to ICANN and the Internet Society, which had close
>>>> ties to the regulation-shy American technology industry.” \[footnotes
>>>> omitted\]
>>> And that brings us to the first reason that the NTIA announced the
>>> transition
>>> in 2014, rather than earlier.
>>>
>>> ### ICANN Adjudged Mature Enough
>>>
>>> The NTIA now sees ICANN as being mature enough: the final transition was
>>> announced 16 years after ICANN’s creation, and complaints about ICANN
>>> and
>>> its legitimacy had largely died down in the international arena in
>>> that while.
>>> Nowadays, governments across the world send their representatives to
>>> ICANN, thus legitimizing ICANN. States have largely been satisfied by
>>> participating in the Government Advisory Council, which, as its name
>>> suggests, only has advisory powers. Further, unlike in the early
>>> days, there is
>>> [no serious push for states assuming control of ICANN]. Of course they
>>> grumble about the ICANN Board not following their advice, but no
>>> government, as far as I am aware, has walked out or refused to
>>> participate.
>>>
>>> ### L’affaire Snowden
>>>
>>> Many within the United States, and some without, believe that the United
>>> States not only plays an exceptional role to play in the running of
>>> the Internet
>>> — by dint of historical development and dominance of American companies
>>> — but that *it ought to* have an exceptional role because it is the best
>>> country to exercise ‘oversight’ over ‘the Internet’ (often coming from
>>> [clueless commentators]), and from dinosaurs of the Internet era, like
>>> [American IP lawyers] and [American ‘homeland’ security hawks], Jones
>>> Day,
>>> who are ICANN’s lawyers, and other [jingoists] and those policymakers
>>> who
>>> are controlled by these narrow-minded interests.
>>>
>>> The Snowden revelations were, in that way, a godsend for the NTIA, as it
>>> allowed them a fig-leaf of [international][] [criticism][] [with
>>> which] to
>>> counter these domestic critics and carry on with a transition that
>>> they have
>>> been seeking to put into motion for a while. The Snowden revelations led
>>> Dilma Rousseff, President of Brazil, to state in September 2013, at
>>> the 68th
>>> U.N. General Assembly, that Brazil would “present proposals for the
>>> establishment of a [civilian multilateral framework for the
>>> governance and
>>> use of the Internet]”, and as [Diego Canabarro] points out this
>>> catalysed the
>>> U.S. government and the technical community into taking action.
>>>
>>> Given this context, a few months after the Snowden revelations, the so-
>>> called [I\* organizations] met — seemingly with the blessing of the U.S.
>>> government[^3] — in Montevideo, and put out a [‘Statement on the Future
>>> of Internet Governance’] that sought to link the Snowden revelations on
>>> pervasive surveillance with the need to urgently transition the IANA
>>> stewardship role away from the U.S. government. Of course, the
>>> signatories
>>> to that statement knew fully well, as did most of the readers of that
>>> statement, that there is no linkage between the Snowden revelations
>>> about
>>> pervasive surveillance and the operations of the DNS root, but still
>>> they, and
>>> others, linked them together.
>>> Specifically, the I\* organizations called for “accelerating the
>>> globalization of
>>> ICANN and IANA functions, towards an environment in which all
>>> stakeholders, including all governments, participate on an equal
>>> footing.”
>>>
>>> One could posit the existence of two other contributing factors as well.
>>>
>>> Given political realities in the United States, a transition of this
>>> sort is
>>> probably best done before an ultra-jingoistic President steps into
>>> office.
>>>
>>> Lastly, the ten-yearly review of the World Summit on Information Society
>>> was currently underway. At the original WSIS (as seen from the civil
>>> society
>>> quoted above) the issue of US control over the root was a major issue of
>>> contention. At that point (and during where the 2006 date for
>>> globalization of
>>> ICANN was emphasized by the US government).
>>>
>>> Why Jurisdiction is Important
>>> -----------------------------
>>>
>>> Jurisdiction has a great many aspects. *Inter alia*, these are:
>>>
>>> -   Legal sanctions applicable to changes in the root zone (for
>>> instance, what happens if a country under US sanctions requests a
>>> change to
>>> the root zone file?)
>>> -   Law applicable to resolution of contractual disputes with
>>> registries, registrars, etc.
>>> -   Law applicable to labour disputes.
>>> -   Law applicable to competition / antitrust law that applies to ICANN
>>> policies and regulations.
>>> -   Law applicable to disputes regarding ICANN decisions, such as
>>> allocation of gTLDs, or non-renewal of a contract.
>>> -   Law applicable to consumer protection concerns.
>>> -   Law applicable to financial transparency of the organization.
>>> -   Law applicable to corporate condition of the organization, including
>>> membership rights.
>>> -   Law applicable to data protection-related policies & regulations.
>>> -   Law applicable to trademark and other speech-related policies &
>>> regulations.
>>> -   Law applicable to legal sanctions imposed by a country against
>>> another.
>>>
>>> Some of these, but not all, depend on where bodies like ICANN (the
>>> policy-
>>> making body), the IANA functions operator (the proposed “Post-Transition
>>> IANA”, insofar as the names function is concerned), and the root zone
>>> maintainer are incorporated or maintain their primary office, while
>>> others
>>> depend on the location of the office \[for instance, Turkish labour
>>> law applies
>>> for the ICANN office in Istanbul\], while yet others depend on what’s
>>> decided by ICANN in contracts (for instance, the resolution of
>>> contractual
>>> disputes with ICANN, filing of suits with regard to disputes over new
>>> generic
>>> TLDs, etc.).
>>>
>>> However, an issue like sanctions, for instance, depends on where
>>> ICANN/PTI/RMZ are incorporated and maintain their primary office.
>>>
>>> As [Milton Mueller notes], the current IANA contract “requires ICANN
>>> to be
>>> incorporated in, maintain a physical address in, and perform the IANA
>>> functions in the U.S. This makes IANA subject to U.S. law and provides
>>> America with greater political influence over ICANN.”
>>>
>>> He further notes that:
>>>
>>>> While it is common to assert that the U.S. has never abused its
>>>> authority
>>> and has always taken the role of a neutral steward, this is not quite
>>> true.
>>> During the controversy over the .xxx domain, the Bush administration
>>> caved
>>> in to domestic political pressure and threatened to block entry of
>>> the domain
>>> into the root if ICANN approved it (Declaration of the Independent
>>> Review
>>> Panel, 2010). It took five years, an independent review challenge and
>>> the
>>> threat of litigation from a businessman willing to spend millions to
>>> get the
>>> .xxx domain into the root.
>>>
>>> Thus it is clear that even if the NTIA’s role in the IANA contract
>>> goes away,
>>> jurisdiction remains an important issue.
>>>
>>> U.S. Doublespeak on Jurisdiction
>>> --------------------------------
>>>
>>> In March 2014, when NTIA finally announced that they would hand over the
>>> reins to “the global multistakeholder community”. They’ve laid down two
>>> procedural condition: that it be developed by stakeholders across the
>>> global
>>> Internet community and have broad community consensus, and they have
>>> proposed 5 substantive conditions that any proposal must meet:
>>>
>>> -   Support and enhance the multistakeholder model;
>>> -   Maintain the security, stability, and resiliency of the Internet
>>> DNS;
>>> -   Meet the needs and expectation of the global customers and partners
>>> of the IANA services; and,
>>> -   Maintain the openness of the Internet.
>>> -   Must not replace the NTIA role with a solution that is
>>> government-led or an inter-governmental organization.
>>>
>>> In that announcement there is no explicit restriction on the
>>> jurisdiction of
>>> ICANN (whether it relate to its incorporation, the resolution of
>>> contractual
>>> disputes, resolution of labour disputes, antitrust/competition law,
>>> tort law,
>>> consumer protection law, privacy law, or speech law, and more, all of
>>> which
>>> impact ICANN and many, but not all, of which are predicated on the
>>> jurisdiction of ICANN’s incorporation), the jurisdiction(s) of the IANA
>>> Functions Operator(s) (i.e., which executive, court, or legislature’s
>>> orders
>>> would it need to obey), and the jurisdiction of the Root Zone
>>> Maintainer (i.e.,
>>> which executive, court, or legislature’s orders would it need to obey).
>>>
>>> However, Mr. Larry Strickling, the head of the NTIA, in his
>>> [testimony before
>>> the U.S. House Subcommittee on Communications and Technology], made it
>>> clear that,
>>>
>>>> “Frankly, if \[shifting ICANN or IANA jurisdiction\] were being
>>>> proposed, I
>>> don’t think that such a proposal would satisfy our criteria,
>>> specifically the one
>>> that requires that security and stability be maintained.”
>>>
>>> Possibly, that argument made sense in 1998, due to the significant
>>> concentration of DNS expertise in the United States. However, in
>>> 2015, that
>>> argument is hardly convincing, and is frankly laughable.[^4]
>>>
>>> Targetting that remark, in ICANN 54 at Dublin, we asked Mr. Strickling:
>>>
>>>> “So as we understand it, the technical stability of the DNS doesn’t
>>> necessarily depend on ICANN’s jurisdiction being in the United
>>> States. So I
>>> wanted to ask would the US Congress support a multistakeholder and
>>> continuing in the event that it’s shifting jurisdiction.”
>>>
>>> Mr. Strickling’s response was:
>>>
>>>> “No. I think Congress has made it very clear and at every hearing
>>>> they have
>>> extracted from Fadi a commitment that ICANN will remain incorporated in
>>> the United States. Now the jurisdictional question though, as I
>>> understand it
>>> having been raised from some other countries, is not so much
>>> jurisdiction in
>>> terms of where ICANN is located. It’s much more jurisdiction over the
>>> resolution of disputes.
>>>> “And that I think is an open issue, and that’s an appropriate one to be
>>> discussed. And it’s one I think where ICANN has made some movement over
>>> time anyway.
>>>> “So I think you have to … when people use the word jurisdiction, we
>>>> need
>>> to be very precise about over what issues because where disputes are
>>> resolved and under what law they’re resolved, those are separate
>>> questions
>>> from where the corporation may have a physical headquarters.”
>>>
>>> As we have shown above, jurisdiction is not only about the
>>> jurisdiction of
>>> “resolution of disputes”, but also, as Mueller reminds us, about the
>>> requirement that ICANN (and now, the PTI) be “incorporated in,
>>> maintain a
>>> physical address in, and perform the IANA functions in the U.S. This
>>> makes
>>> IANA subject to U.S. law and provides America with greater political
>>> influence
>>> over ICANN.”
>>>
>>> In essence, the U.S. government has essentially said that they would
>>> veto
>>> the transition if the jurisdiction of ICANN or PTI’s incorporation
>>> were to move
>>> out of the U.S., and they can prevent that from happening
>>> *after* the transition, since as things stand ICANN and PTI will
>>> still come
>>> within the U.S. Congress’s jurisdiction.
>>>
>>> Why Has the ICG Failed to Consider Jurisdiction?
>>> ------------------------------------------------
>>>
>>> Will the ICG proposal or the proposed new ICANN by-laws reduce existing
>>> U.S. control? No, they won’t. (In fact, as we will argue below, the
>>> proposed
>>> new ICANN by-laws make this problem even worse.) The proposal by the
>>> names community (“the CWG proposal”) still has a requirement (in
>>> Annex S)
>>> that the Post-Transition IANA (PTI) be incorporated in the United
>>> States, and
>>> a similar suggestion hidden away as a footnote.
>>> Further, the proposed by-laws for ICANN include the requirement that PTI
>>> be a California corporation. There was no discussion specifically on
>>> this issue,
>>> nor any documented community agreement on the specific issue of
>>> jurisdiction of PTI’s incorporation.
>>>
>>> Why wasn’t there greater discussion and consideration of this issue?
>>> Because of two reasons: First, there were many that argued that the
>>> transition would be vetoed by the U.S. government and the U.S.
>>> Congress if
>>> ICANN and PTI were not to remain in the U.S. Secondly, the ICANN-formed
>>> ICG saw the US government’s actions very narrowly, as though the
>>> government were acting in isolation, ignoring the rich dialogue and
>>> debate
>>> that’s gone on earlier about the transition since the incorporation
>>> of ICANN
>>> itself.
>>>
>>> While it would be no one’s case that political considerations should
>>> be given
>>> greater weightage than technical considerations such as security,
>>> stability,
>>> and resilience of the domain name system, it is shocking that political
>>> considerations have been completely absent in the discussions in the
>>> number and protocol parameters communities, and have been extremely
>>> limited in the discussions in the names community. This is even more
>>> shocking considering that the main reason for this transition is, as
>>> has been
>>> argued above, political.
>>>
>>> It can be also argued that the certain IANA functions such as Root Zone
>>> Management function have a considerable political implication. It is
>>> imperative that the political nature of the function is duly
>>> acknowledged and
>>> dealt with, in accordance with the wishes of the global community. In
>>> the
>>> current process the political aspects of the IANA function has been
>>> completely overlooked and sidelined. It is important to note that this
>>> transition has not been a necessitated by any technical
>>> considerations. It is
>>> primarily motivated by political and legal considerations. However, the
>>> questions that the ICG asked the customer communities to consider were
>>> solely technical. Indeed, the communities could have chosen to overlook
>>> that, but they did not choose to do so. For instance, while the IANA
>>> customer
>>> community proposals reflected on existing jurisdictional
>>> arrangements, they
>>> did not reflect on how the jurisdictional arrangements should be post-
>>> transition , while this is one of the questions at the heart of the
>>> entire
>>> transition.
>>> There were no discussions and decisions as to the jurisdiction of the
>>> Post-
>>> Transition IANA: the Accountability CCWG’s lawyers, Sidley Austin,
>>> recommended that the PTI ought to be a California non-profit
>>> corporation,
>>> and this finds mention in a footnote without even having been debated by
>>> the “global multistakeholder community”, and subsequently in the
>>> proposed
>>> new by-laws for ICANN.
>>>
>>> Why the By-Laws Make Things Worse & Why “Work Stream 2” Can’t Address
>>> Most Jurisdiction Issues
>>> ----------------------------------------------------------------------------------------------
>>>
>>>
>>> The by-laws could have chosen to simply stayed silent on the matter
>>> of what
>>> law PTI would be incorporated under, but instead the by-law make the
>>> requirement of PTI being a California non-profit public benefit
>>> corporation
>>> part of the *fundamental by-laws*, which are close to impossible to
>>> amend.
>>>
>>> While “Work Stream 2” (the post-transition work related to improving
>>> ICANN’s accountability) has jurisdiction as a topic of consideration,
>>> the scope
>>> of that must necessarily discount any consideration of shifting the
>>> jurisdiction
>>> of incorporation of ICANN, since all of the work done as part of CCWG
>>> Accountability’s “Work Stream 1”, which are now reflected in the
>>> proposed
>>> new by-laws, assume Californian jurisdiction (including the legal
>>> model of the
>>> “Empowered Community”).
>>> Is ICANN prepared to re-do all the work done in WS1 in WS2 as well?
>>> If the
>>> answer is yes, then the issue of jurisdiction can actually be
>>> addressed in WS2.
>>> If the answer is no ­— and realistically it is — then, the issue of
>>> jurisdiction
>>> can only be very partially addressed in WS2.
>>>
>>> Keeping this in mind, we recommended specific changes in the by-laws,
>>> all of
>>> which were rejected by CCWG’s lawyers.
>>>
>>> The Transition Plan Fails the NETmundial Statement
>>> --------------------------------------------------
>>>
>>> The [NETmundial Multistakeholder Document], which was an outcome of the
>>> NETmundial process, states:
>>>
>>>> In the follow up to the recent and welcomed announcement of US
>>>> Government with regard to its intent to transition the stewardship of
>>>> IANA functions, the discussion about mechanisms for guaranteeing the
>>>> transparency and accountability of those functions after the US
>>>> Government role ends, has to take place through an open process with
>>>> the participation of all stakeholders extending beyond the ICANN
>>>> community
>>>>
>>>> \[…\]
>>>>
>>>> It is expected that the process of globalization of ICANN speeds up
>>>> leading
>>> to a truly international and global organization serving the public
>>> interest with
>>> clearly implementable and verifiable accountability and transparency
>>> mechanisms that satisfy requirements from both internal stakeholders and
>>> the global community.
>>>> The active representation from all stakeholders in the ICANN structure
>>> from all regions is a key issue in the process of a successful
>>> globalization.
>>>
>>> As our past analysis has shown, the IANA transition process and the
>>> discussions on the mailing lists that shaped it [were neither global nor
>>> multistakeholder]. The DNS industry represented in ICANN is largely US-
>>> based. 3 in 5 registrars are from the United States of America,
>>> whereas less
>>> than 1% of ICANN-registered registrars are from Africa.
>>> Two-thirds of the Business Constituency in ICANN is from the USA. While
>>> ICANN-the-corporation has sought to become more global, the ICANN
>>> community has remained insular, and this will not change until the
>>> commercial interests involved in ICANN can become more diverse,
>>> reflecting
>>> the diversity of users of the Internet, and a TLD like .COM can be
>>> owned by a
>>> non-American corporation and the PTI can be a non-American entity.
>>>
>>> What We Need: Jurisdictional Resilience
>>> ---------------------------------------
>>>
>>> It is no one’s case that the United States is less fit than any other
>>> country as a
>>> base for ICANN, PTI, or the Root Zone Maintainer, or even as the
>>> headquarters for 9 of the world’s 12 root zone operators (Verisign
>>> runs both
>>> the A and J root servers). However, just as having multiplicity of
>>> root servers
>>> is important for ensuring technical resilience of the DNS system (and
>>> this is
>>> shown in the uptake of Anycast by root server operators), it is equally
>>> important to have immunity of core DNS functioning from political
>>> pressures
>>> of the country or countries where core DNS infrastructure is legally
>>> situated
>>> and to ensure that we have diversity in terms of legal jurisdiction.
>>>
>>> Towards this end, we at CIS have pushed for the concept of
>>> “jurisdictional
>>> resilience”, encompassing three crucial points:
>>>
>>> -   Legal immunity for core technical operators of Internet functions
>>> (as opposed to policymaking venues) from legal sanctions or orders
>>> from the
>>> state in which they are legally situated.
>>> -   Division of core Internet operators among multiple jurisdictions
>>> -   Jurisdictional division of policymaking functions from technical
>>> implementation functions
>>>
>>> Of these, the most important is the limited legal immunity (akin to a
>>> greatly
>>> limited form of the immunity that UN organizations get from the laws
>>> of their
>>> host countries). This kind of immunity could be provided through a
>>> variety of
>>> different means: a host-country agreement; a law passed by the
>>> legislature;
>>> a U.N. General Assembly Resolution; a U.N.-backed treaty; and other such
>>> options exist. We are currently investigating which of these options
>>> would be
>>> the best option.
>>>
>>> And apart from limited legal immunity, distribution of jurisdictional
>>> control is
>>> also valuable. As we noted in our submission to the ICG in September
>>> 2015:
>>>
>>>> Following the above precepts would, for instance, mean that the entity
>>> that performs the role of the Root Zone Maintainer should not be
>>> situated in
>>> the same legal jurisdiction as the entity that functions as the
>>> policymaking
>>> venue. This would in turn mean that either the Root Zone Maintainer
>>> function be taken up Netnod (Sweden-headquartered) or the WIDE Project
>>> (Japan-headquartered) \[or RIPE-NCC, headquartered in the Netherlands\],
>>> or that if the IANA Functions Operator(s) is to be merged with the
>>> RZM, then
>>> the IFO be relocated to a jurisdiction other than those of ISOC and
>>> ICANN.
>>> This, as has been stated earlier, has been a demand of the Civil Society
>>> Internet Governance Caucus. Further, it would also mean that root zone
>>> servers operators be spread across multiple jurisdictions (which the
>>> creation
>>> of mirror servers in multiple jurisdictions will not address).
>>>
>>> However, the issue of jurisdiction seems to be dead-on-arrival,
>>> having been
>>> killed by the United States government.
>>>
>>> Unfortunately, despite the primary motivation for demands for the IANA
>>> transition being those of removing the power the U.S. government
>>> exercises
>>> over the core of the Internet’s operations in the form of the DNS,
>>> what has
>>> ended up happening through the IANA transition is that these powers have
>>> not only not been removed, but in some ways they have been entrenched
>>> further! While earlier, the U.S. had to specify that the IANA functions
>>> operator had to be located in the U.S., now ICANN’s by-laws
>>> themselves will
>>> state that the post-transition IANA will be a California corporation.
>>> Notably,
>>> while the Montevideo Declaration speaks of “globalization” of ICANN
>>> and of
>>> the IANA functions, as does the NETmundial statement, the NTIA
>>> announcement on their acceptance of the transition proposals speaks of
>>> “privatization” of ICANN, and not “globalization”.
>>>
>>> All in all, the “independence” that IANA is gaining from the U.S. is
>>> akin to the
>>> “independence” that Brazil gained from Portugal in 1822. Dom Pedro of
>>> Brazil
>>> was then ruling Brazil as the Prince Regent since his father Dom João
>>> VI, the
>>> King of United Kingdom of Portugal, Brazil and the Algarves had
>>> returned to
>>> Portugal. In 1822, Brazil declared independence from Portugal (which was
>>> formally recognized through a treaty in 1825). Even after this
>>> “independence”, Dom Pedro continued to rule Portugal just as he had
>>> before indepedence, and Dom João VI was provided the title of
>>> “Emperor of
>>> Brazil”, aside from being King of the United Kingdom of Portugal and the
>>> Algarves. The “indepedence” didn’t make a whit of a difference to the
>>> self-
>>> sufficiency of Brazil: Portugal continued to be its largest trading
>>> partner. The
>>> “independence” didn’t change anything for the nearly 1 million slaves in
>>> Brazil, or to the lot of the indigenous peoples of Brazil, none of
>>> whom were
>>> recognized as “free”. It had very little consequence not just in
>>> terms of
>>> ground conditions of day-to-day living, but even in political terms.
>>>
>>> Such is the case with the IANA Transition: U.S. power over the core
>>> functioning of the Domain Name System do not stand diminished after the
>>> transition, and they can even arguably be said to have become even more
>>> entrenched. Meet the new boss: same as the old boss.
>>>
>>> [^1]: It is an allied but logically distinct issue that U.S.
>>> businesses — registries
>>> and registrars — dominate the global DNS industry, and as a result
>>> hold the
>>> reins at ICANN.
>>>
>>> [^2]: As Goldsmith & Wu note in their book *Who Controls the Internet*:
>>> “Back in 1998 the U.S. Department of Commerce promised to relinquish
>>> root
>>> authority by the fall of 2006, but in June 2005, the United States
>>> reversed
>>> course. “The United States Government intends to preserve the
>>> security and
>>> stability of the Internet’s Domain Name and Addressing System (DNS),”
>>> announced Michael D. Gallagher, a Department of Commerce official. “The
>>> United States” he announced, will “maintain its historic role in
>>> authorizing
>>> changes or modifications to the authoritative root zone file.”
>>>
>>> [^3]: Mr. Fadi Chehadé revealed in an interaction with Indian
>>> participants at
>>> ICANN 54 that he had a meeting “at the White House”
>>> about the U.S. plans for transition of the IANA contract before he spoke
>>> about that when [he visited India in October 2013] making the timing
>>> of his
>>> White House visit around the time of the Montevideo Statement.
>>>
>>> [^4]: As an example, [NSD], software that is used on multiple root
>>> servers, is
>>> funded by a Dutch foundation and a Dutch corporation, and written mostly
>>> by European coders.
>>>
>>>      [US government announced]:
>>> https://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-
>>> transition-key-internet-domain-name-functions
>>>      [Internet Assigned Numbers Authority]: https://www.iana.org/
>>>      [in a declaration by the Civil Society Internet Governance
>>> Caucus at WSIS, in
>>> 2005]:
>>> https://www.itu.int/net/wsis/docs2/pc3/contributions/sca/hbf-29.doc
>>>      [not technical]:
>>>      [White Paper on Management of Internet Names and Addresses]:
>>> https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-
>>> 25-en
>>>      [asserted it’s control over the root]:
>>> http://www.icannwatch.org/archive/mueller_icann_and_internet_governan
>>> ce.pdf
>>>      [no serious push for states assuming control of ICANN]:
>>> http://www.internetgovernance.org/2012/05/24/threat-analysis-of-itus-
>>> wcit-part-1-historical-context/
>>>      [clueless commentators]:
>>> http://www.wsj.com/articles/SB10001424052702303563304579447362610955
>>> 656
>>>      [American IP lawyers]:
>>> http://www.circleid.com/posts/20140316_if_the_stakeholders_already_con
>>> trol_the_internet_netmundial_iana/
>>>      [American ‘homeland’ security hawks]:
>>> http://www.lawfareblog.com/2014/03/who-controls-the-internet-address-
>>> book-icann-ntia-and-iana/
>>>      [jingoists]:
>>> http://homepages.wmich.edu/~cooneys/poems/cummings.nextto.html
>>>      [international]:
>>> http://www.ft.com/cms/s/0/4529516c-c713-11e3-889e-00144feabdc0.html
>>>      [criticism]:
>>> https://www.rt.com/usa/nsa-fallout-relinquish-internet-oversight-002/
>>>      [with which]:
>>> https://twitter.com/carolinegreer/status/454253411576598528
>>>      [civilian multilateral framework for the governance and use of the
>>> Internet]:
>>> https://gadebate.un.org/sites/default/files/gastatements/68/BR_en.pdf
>>>      [Diego Canabarro]: https://icannwiki.com/Diego_Canabarro
>>>      [I\* organizations]:
>>> https://www.apnic.net/community/ecosystem/i*orgs
>>>      [‘Statement on the Future of Internet Governance’]:
>>> https://www.apnic.net/publications/news/2013/montevideo-statement-on-
>>> future-of-internet-cooperation
>>>      [Milton Mueller notes]:
>>> http://content.netmundial.br/contribution/roadmap-for-globalizing-iana-
>>> four-principles-and-a-proposal-for-reform-a-submission-to-the-global-
>>> multistakeholder-meeting-on-the-future-of-internet-governance/96
>>>      [testimony before the U.S. House Subcommittee on Communications and
>>> Technology]: https://www.youtube.com/watch?v=8v-
>>> yWye5I0w&feature=youtu.be
>>>      [NETmundial Multistakeholder Document]:
>>> http://netmundial.br/wp-content/uploads/2014/04/NETmundial-
>>> Multistakeholder-Document.pdf
>>>      [were neither global nor multistakeholder]:
>>> cis-india.org/internet-governance/blog/global-multistakeholder-community-
>>>
>>> neither-global-nor-multistakeholder
>>>      [he visited India in October 2013]:
>>> http://articles.economictimes.indiatimes.com/2013-10-
>>> 22/news/43288531_1_icann-internet-corporation-us-centric-internet
>>>      [NSD]: https://www.nlnetlabs.nl/projects/nsd/
>>>
>>>
>>> --
>>> Pranesh Prakash
>>> Policy Director, Centre for Internet and Society http://cis-india.org
>>> | tel:+91
>>> 80 40926283 sip:[log in to unmask] | xmpp:[log in to unmask]
>>> https://twitter.com/pranesh
>>>
>>>
>

-- 
Pranesh Prakash
Policy Director, Centre for Internet and Society
http://cis-india.org | tel:+91 80 40926283
sip:[log in to unmask] | xmpp:[log in to unmask]
https://twitter.com/pranesh