[CCWG-ACCT] Legal question

Mon Apr 27 11:39:28 UTC 2015

OK Doctor -- I'll bite.  Does the USG have a claim on the root?  As a
factual matter, has it ever asserted such a claim?  If so, please point me
to that claim as a statement of USG policy.  A web link or a PDF will be
sufficient.  If it has not ever made such a claim, then asking whether the
USG has a claim to the root is like asking whether Rosenzweig has a claim to
the .na ccTLD.    Theoretically, conceivable but in practice irrelevant.

Paul

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com 
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
Skype: paul.rosenzweig1066

-----Original Message-----
From: Dr Eberhard W Lisse [mailto:el at lisse.na] 
Sent: Sunday, April 26, 2015 4:14 PM
To: Paul Rosenzweig
Cc: <accountability-cross-community at icann.org>;
ccwg-accountability5 at icann.org
Subject: Re: [CCWG-ACCT] Legal question

That is not the questions, the question is wether the USG DOES have a claim
on the root, not what its position is on something nor whether the IANA
function is a service, never mind that any such service would be linked to
the root (asset, property or whatever).

And we are actually speaking about the root itself not how it is managed.

Even if we assumed that the service argument were valid, how can someone be
obliged to accept a service?

Many ccTLD managers do not really mind who keeps the demographic data and
the name server data current, but I most certainly do not need revocation
service provided. I personally don't care much about Delegation (including
Transfer) and Retirement, but these are not uncontroversial, either.

greetings, el

--
Sent from Dr Lisse's iPad mini

> On Apr 25, 2015, at 21:33, Paul Rosenzweig
<paul.rosenzweig at redbranchconsulting.com> wrote:
> 
> The flaw is in the premise of the question -- that the United States 
> asserts ownership of or a property interest in the IANA function.  The 
> US position
> (http://www.ntia.doc.gov/speechtestimony/2015/testimony-assistant-secr
> etary-
> strickling-senate-committee-commerce-science-and-) is that the IANA 
> function is a service: "Federal agencies can discontinue obtaining 
> such services when they no longer need them.  As NTIA made clear at 
> the time of its Statement of Policy, it intended only to procure the 
> IANA functions services until such time as the transition to private 
> sector management of the Internet DNS was complete."
> 
> Paul
> 
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> 
> 
> -----Original Message-----
> From: Dr Eberhard W Lisse [mailto:el at lisse.NA]
> Sent: Saturday, April 25, 2015 12:34 PM
> To: accountability-cross-community at icann.org
> Cc: ccwg-accountability5 at icann.org; Lisse Eberhard
> Subject: Re: [CCWG-ACCT] Legal question
> 
> Avri,
> 
> at issue is not that it is the US (government) which has a "claim"
> on it, but whether this "claim" allows the USG to do what it wants to 
> do, and how this affects (ccTLD)s.
> 
> 
> Under whose oversight something was created does not matter, it 
> matters by whom (including acting on behalf of), dependence does mean 
> equally little in this regards.
> 
> Having factual control over something does not mean it is right (or 
> even legal).
> 
> 
> This is not scholarly or academic, at all.
> 
> 
> Let me give you (a real life) example:
> 
>    Namibia inherited stewardship of an island (as large as a
>    baseball field) in a river next to Botswana at independence
>    from South Africa.  Until independence South Africa had
>    stewardship, and the Botswana government did not feel in a
>    position to challenge that.  After Namibia's independence
>    Botswana occupied it and when this went to (International)
>    Court, it turned out stewardship had belonged to Botswana
>    all along.
> 
>    So it was duly returned by Namibia.
> 
> see 
> http://www.icj-cij.org/docket/index.php?sum=505&p1=3&p2=3&case=98&p3=5
> http://en.wikipedia.org/wiki/Sedudu (in particular the second last
> paragraph) and
> http://webworld.unesco.org/water/wwap/pccp/cd/pdf/educational_tools/co
> urse_m 
> odules/reference_documents/sharinginternwatercases/sciencehistory.pdf
> 
> 
>    Now imagine the South African government had sold the island
>    to someone who then had invested significantly in a Lodge
>    type of thing...
> 
> 
> How on earth can you give something away that doesn't belong to you?
> 
> Or if it does, what rules does the USG have for disposing of assets 
> (such as this)?
> 
> By the way, the view that The IANA Function is being executed well is 
> most certainly not shared by many ccTLD Managers.
> 
> There have been significant issues with response times in the past 
> (which is an operational issue and would fall under CWG, and seems to 
> have imporev a lot anyway) but in particular the ones that are being 
> or have been leaned on by the IANA Department, or where the ccTLD has 
> been revoked under extremely dubious circumstances (.PN, .KE, .AU and 
> recently .ML to name but a few) but also the ccNSO which chartered the 
> FoI Wg (with the GAC() for this very reason.
> 
> Which I why am concerned about the lack of accountability in this 
> regards needing to be improved before the transition.
> 
> greetings, el
> 
>> On 2015-04-25 16:31 , Avri Doria wrote:
>> 
>> Hi,
>> 
>> Fool that I sometimes am, i have been thinking about your question 
>> from a CCWG participant perspective, and from the perspective of a 
>> USAn.
>> 
>> Also not a international lawyer or lawyer of any sort.
>> 
>>> On 25-Apr-15 10:31, Dr Eberhard W Lisse wrote:
>>> This does not even address the question whether the USG has any 
>>> claim to the root, and the numerous consequences originating from this.
>> 
>> I do not think of the US as having a claim on it.  But I am sure that 
>> this is an issue legal scholars could have a good discussion on.  It 
>> would be interesting* to see some exegesis from the global legal 
>> scholars on this issue.  I bet it would make for fascinating reading, 
>> and I am sure there are many different interesting scholarly 
>> perspectives on it.
>> 
>> Interesting issue, but I do not see it as a gating issue for the 
>> _Accountability_ CCWG
>> 
>> I do think of the US as currently having responsibility for it. It 
>> was created under their oversight, for better or worse the world has 
>> become dependent on it, and until they can hand the responsibility to 
>> others, it is their problem.  They are trying, for the most part, to 
>> hand the Stewardship responsibilities off to an appropriate 
>> multi-stakeholder group.
>> 
>> There seems to be a broad view, though not universal, that ICANN does 
>> a decent job as the current IANA function operator.  But while they 
>> do the job of IANA well, there is also broad agreement, though not 
>> universal, that ICANN needs to become more accountable as part of any 
>> transfer of Stewardship.  US oversight, and international pressure on 
>> the US on they way they do the oversight, has been important in 
>> trying to keep ICANN in line. Lose that, and people start to worry.
>> 
>> So I think that whether the US has a claim to the root or not is an 
>> interesting side issue, and I love interesting side issues, but I do 
>> not believe it is material to the work this group has been assigned 
>> to do.
>> 
>> I do not support passing this on to the legal firms we have, as it is 
>> not gating for this group and is not in either law firms skill set or 
>> terms of reference, as I understand them.  As I am not a member of 
>> the legal sub-team, my opinion on this is without weight, but I felt 
>> like expressing it this fine Saturday morning.
>> 
>> cheers
>> 
>> avri
>> 
>> 
>> * Should the US congress decide it is in the position to stop a 
>> transition that there is broad agreement on, then this scholarly 
>> research might become useful.  But that will not be a task for this 
>> group either.
> [...]
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