Thank you Milton, Paul and Rafik for your interesting contributions.

The notion of "risks" was brought up on several occasions in this thread. The "risk" most frequently referred to is that some authority (say the US Congress) might become impatient and call off the transition of oversight, or any further globalization of ICANN.

This does illustrate -and Milton correctly pointed out- that this fear, expressed as a risk, fosters the tendency towards self-censorship by parts of the community.

So the ultimate question is whether the global Internet community has any justification at all in calling for a more global Internet. Is it illegitimate?

Jean-Jacques.






 

----- Mail original -----
De: "Rafik Dammak" <[log in to unmask]>
À: [log in to unmask]
Envoyé: Jeudi 21 Mai 2015 02:22:51
Objet: Re: Public Comments on IANA proposal



Thanks Paul and Milton for those explanation about the issues related to the jurisdiction. I know that is sensitive matter for many and it is quite important to highlight the context and risks here. 


Best, 


Rafik 



2015-05-21 6:04 GMT+09:00 Paul Rosenzweig < [log in to unmask] > : 






I wrote something about this for the Lawfare Blog: http://www.lawfareblog.com/2015/04/on-the-issue-of-jurisdiction-over-icann/ 



Long story short – if you mistake “place of incorporation” for “jurisdiction” you are making a big mistake. What I wrote was about moving ICANN, but the same principles hold for PTI. To the extent PTI operates in the US, it will be subject to US law – just as it will be subject to German law if it operates in Germany. Where you incorporate is relevant only with respect to laws regarding corporate governance. The other concerns (which are the real concerns here) about undue influence are not in any way ameliorated … 



Paul 




Paul Rosenzweig 

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Link to my PGP Key 







From: Milton L Mueller [mailto: [log in to unmask] ] 
Sent: Wednesday, May 20, 2015 4:39 PM 
To: [log in to unmask] 
Subject: Re: Public Comments on IANA proposal 





Let me partially agree and partially disagree with Norbert and Jean-Jacques regarding US jurisdiction. JJS said: 


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. 



MM: The presence of ICANN in US jurisdiction is quite distinct from the question of US NTIA oversight. Currently, NTIA has very direct, substantial power over ICANN by virtue of its awarding of the IANA contract. And the renewal of the contract, with its link to NTIA, is the “hook” by which the U.S. Congress attempts to sway ICANN policy decisions. Take away the NTIA contract, and Congress has very little power over ICANN. It could only gain that power by passing legislation specifically regulating it (which would spark strong opposition from many civil society, business and technical people). And while that may be a risk, it seems to me that that is a risk that would occur in any country. Suppose ICANN was domiciled in France; then the French govt might decide to try to control it; if it were in China, same thing might happen. In that light, US doesn’t look so bad, although it is clearly more of a controversial and polarizing actor in international relations than many other countries. 



Furthermore, we could lose a lot of accountability by changing ICANN’s jurisdiction at this stage of the game. All of the accountability mechanisms we are designing are predicated on California law, and starting over with a new, less well-understood jurisdiction is not a good idea. 



In some respects it would be good to split the jurisdiction in order to distribute power; e.g., leave ICANN in California but put PTI (post-transition IANA for those of you not up on your acronyms) in Switzerland or somewhere. I would not be opposed to this (as long as the jurisdiction afforded an appropriate governance structure and legal stability). Jurisdictional diversity has some good anti-capture and distribution of power features. 



The problem with such suggestion is the purely political obstacles to such a move.. First, the U.S. Congress might prevent the NTIA from going ahead with a plan that involved a foreign jurisdiction. That problem might be overcome if there was strong community consensus however. The bigger, second problem, as I have said elsewhere, is that the most active and influential voices in the CWG process (ICANN itself, the tech community, ccTLD registries, gTLD registries, IPC, other business interests) have shown no interest in such a move. Some of these people think it is too “destabilizing” to even separate IANA from ICANN at all (and ALAC has been among that chorus, sadly), much less change its jurisdiction. That is why the jurisdiction issue keeps fading from view. 



For that to change, two things would have to happen: 

- There would have to be much more active and vocal participation in the process from voices calling for a non-US jurisdiction for PTI 

- There would have to be a flood of public comments in the current proceeding (i.e., today) calling for more independence for PTI and a different jurisdiction. 



Interestingly, I see that the govts of India and Italy have both called for that. But while their comments are strong, those voices are not participating directly in the day to day process shaping the proposal. They won’t have much impact unless they do. 



Milton L. Mueller 

Laura J. and L. Douglas Meredith Professor 

Syracuse University School of Information Studies 

http://faculty.ischool.syr.edu/mueller/mueller/Home.html 

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 ******************************* 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 *******************************