[CCWG-ACCT] Legal question

Dr Eberhard W Lisse el at lisse.na
Mon Apr 27 19:20:34 UTC 2015 

You take wrong.

el

-- 
Sent from Dr Lisse's iPad mini

> On Apr 27, 2015, at 17:19, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com> wrote:
> 
> 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.
>>> [...]
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