[CCWG-ACCT] Legal question

Mon Apr 27 20:40:04 UTC 2015

+1

As JFK famously said when he arrived in Windhoek: ICH BIN EIN NAMIBIER!

Carlos Raúl Gutiérrez
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> On Apr 27, 2015, at 5:39 AM, 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-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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