People have been talking about this for over a decade to my knowledge. Have had all sorts of committees &c. study it. avri On 04-Jul-16 11:45, Mueller, Milton L wrote: > > Yes, Aysen isn't it amazing how so many people see to be taking about > this "taboo" topic? > Perhaps Pranesh's posturing as breaker of taboos is a bit exaggerated. > > Milton L Mueller > Professor, School of Public Policy > Georgia Institute of Technology > > On Jul 3, 2016, at 11:09, Ayden Férdeline <[log in to unmask] > <mailto:[log in to unmask]>> wrote: > >> Hi Pranesh, >> >> I have read your piece and while on the surface I am sympathetic to >> the concerns raised, I am also pragmatic. What is the alternative >> that you seek? >> >> Also, there has been a similar discussion on the CCWG-Accountability >> list over the past few days. I'm not sure if you have seen it, but I >> found this reply from Phillip Corwin >> <https://links6.mixmaxusercontent.com/aMjjKHWxnLSD3SEwj/l/FaTd64xD613pNHuMy?messageId=xcpJPtDY2aoAQekbU&rn=gIMBibvRHbp1EIsIXZsxWZ11kI&re=gI1RWZug2YlRXYnBkbvRHbp1mI>, >> which I have pasted below, to be very compelling. I do not recall >> reading any disagreements with his remarks - but if you do object to >> it, I would be happy to read your rebuttal. >> >> Best wishes, >> >> Ayden >> >> ==== >> >> With all respect, the reason that many of us regard this discussion >> as nonproductive is that no compelling case has been made for >> embarking on the path proposed, and no proper recognition has been >> made by the proponent of the costs and difficulties involved. >> >> For example: >> “There is accordingly no reason why we cannot have international law >> that protects individual and business rights vis a vis a >> international body (that ICANN should become under international law). >> To repeat, there is absolutely no problem with developing an >> international treaty that writes international law, which will make >> ICANN an international body, but with exactly the same governance and >> other processes (multistakeholder) as exist at present, and also >> provide means to ensure that individuals/ businesses interests and >> rights vis a vis ICANN are protected through a special court system >> that is set up by the same treaty. >> >> So you are proposing, just for this one ICANN organization and its >> very limited remit, spending an enormous amount of time and money >> (for legal expertise, plus the value of the time of all those >> involved stakeholders) to hammer out a new international treaty to >> implemented, as well as the development of “international law” that >> is relevant to all concerns that may arise for disputes within and >> involving ICANN. Contract law, employment law, competition/antitrust >> law, etc., ad infinitum. How long will all this take? Years, I would >> submit. And from what more important issues will the ICANN community >> be distracted while embarking on this herculean effort? >> >> And what would that law be? For example, for competition/antitrust as >> it relates to domain industry pricing within the framework of >> ICANN policies and contractual practices, shall it be the US >> approach, the EU's, some other nation's, or some amalgamation of >> them? And how long and at what expense shall that effort take? And >> from what source is the authority of the authors of these “laws” >> derived; in democratic nations legislators derive their authority by >> gathering majority support of voters, but ICANN is not a nation-state. >> >> And, oh yes, we are also supposed to create “a special court system >> that is set up by the same treaty” to decide disputes under this new >> body of law created just for ICANN. How many jurists? What >> substantive requirements, and evidentiary standards, and procedural >> rules? What mechanism of appeal and to what body? >> >> I would submit that this whole proposed project is quite absurd, >> especially given the lack of any convincing rationale to so many of >> us that such a project is even required to address >> any foreseeable dispute. >> >> >> Philip S. Corwin, Founding Principal >> Virtualaw LLC >> 1155 F Street, NW >> Suite 1050 >> Washington, DC 20004 >> 202-559-8597/Direct >> 202-559-8750/Fax >> 202-255-6172/cell >> >> “Luck is the residue of design” -- Branch Rickey >> >> >> >> On Fri, Jul 1, 2016 4:42 PM, Mueller, Milton L [log in to unmask] >> <mailto:[log in to unmask]> wrote: >> >> Pranesh: >> >> I've read your piece. I note that neither it, nor your response >> to my message below, justifies your argument that the transition >> is “meaningless” unless it changes U.S. jurisdiction. >> >> The transition as proposed would eliminate direct USG authority >> over all root zone changes, and end the IANA contract which has >> provided direct political leverage of the US government over >> ICANN. These changes eliminate the two most direct forms of USG >> authority over ICANN and DNS. We would also create important new >> accountability improvements in ICANN's corporate governance. >> >> Please respond: are you telling me you prefer the status quo to >> the transition plan? Or do you think the transition plan is an >> improvement? >> >> Dr. Milton L. Mueller >> >> Professor, School of Public Policy >> >> Georgia Institute of Technology >> >> > -----Original Message----- >> >> > From: NCSG-Discuss [mailto:[log in to unmask]] On >> Behalf Of >> >> > Pranesh Prakash >> >> > Sent: Thursday, June 30, 2016 11:56 AM >> >> > To: [log in to unmask] >> <mailto:[log in to unmask]> >> >> > Subject: Re: Jurisdiction: The Taboo Topic at ICANN >> >> > >> >> > 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] <mailto:[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] >> <mailto:[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_governa >> >> > >>> n >> >> > >>> 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/SB100014240527023035633045794473626109 >> >> > 55 >> >> > >>> 656 >> >> > >>> [American IP lawyers]: >> >> > >>> >> http://www.circleid.com/posts/20140316_if_the_stakeholders_already_c >> >> > >>> on >> >> > >>> 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 >> <http://homepages.wmich.edu/%7Ecooneys/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-ia >> >> > >>> na- >> >> > >>> >> 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 <http://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-commu >> <http://cis-india.org/internet-governance/blog/global-multistakeholder-commu> >> >> >> > >>> nity- >> >> > >>> >> >> > >>> 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] <http://ostel.co> | >> xmpp:[log in to unmask] <http://cis-india.org> >> >> > >>> https://twitter.com/pranesh >> >> > >>> >> >> > >>> >> >> > > >> >> > >> >> > -- >> >> > Pranesh Prakash >> >> > Policy Director, Centre for Internet and Society >> http://cis-india.org <http://cis-india.org> | tel:+91 >> >> > 80 40926283 sip:[log in to unmask] <http://ostel.co> | >> xmpp:[log in to unmask] <http://cis-india.org> >> >> > https://twitter.com/pranesh >> >> >> >> Ayden Férdeline >> Statement of Interest >> <https://community.icann.org/display/gnsosoi/Ayden+F%E9rdeline+SOI> >> --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus