[CCWG-ACCT] Legal question
Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
Mon Apr 27 16:19:08 UTC 2015
I take it that the answer to my question is "no." The USG has not
apparently made a claim of ownership of the root. Hence the legal question
is merely theoretical -- if it were to assert such a claim, how might we
resolve it?
As for stewardship, that is of course a different legal concept. One can be
the steward of an item without owning it. One can serve as a trustee
without an ownership interest. One can procure a service with respect to an
item without owning it. Etc.
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: Monday, April 27, 2015 11:48 AM
To: CCWG Accountability
Cc: Deerhake Stephen; Lisse Eberhard
Subject: Re: [CCWG-ACCT] Legal question
Does Rosenzweig wish to transfer stewardship of .NA? Obviously not, but of
he did, he better have a claim to it...
el
--
Sent from Dr Lisse's iPad mini
> On Apr 27, 2015, at 12:39, Paul Rosenzweig
<paul.rosenzweig at redbranchconsulting.com> wrote:
>
> 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-sec
>> r
>> 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/c
>> o
>> 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.
>> [...]
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
More information about the Accountability-Cross-Community
mailing list