[CCWG-ACCT] [Acct-Legal] Objection (Re: Nomcom as a UA - legal question)

Dr Eberhard Lisse el at lisse.NA
Tue Apr 28 10:31:51 UTC 2015

Where do I find that agreement?


On 2015-04-26 20:50, Dr Eberhard W Lisse wrote:
> Becky,
> thank you for your support. 
> So, we DO need to find out what the basis is.
> el
> -- 
> Sent from Dr Lisse's iPad mini
> On Apr 26, 2015, at 19:35, Burr, Becky <Becky.Burr at neustar.biz
> <mailto:Becky.Burr at neustar.biz>> wrote:
>> Eberhard,
>> The answer to your question re USG “claim” to the root is – as I’m
>> sure you know – somewhat convoluted.  Without jumping into the “what
>> the IPC rep said and what the record reflects” controversy (about
>> which I know nothing) here is my take on the situation.
>> The USG entered into a “cooperative agreement" with Network Solutions
>> in 1993, under which Network Solutions operated the authoritative
>> root, and also provided both registry and registrar services to TLDs
>> other than ccTLDs.  Until he died in 1998, Jon Postel was in charge of
>> IANA functions through a contract between the University of Southern
>> California Information Sciences Institute and DARPA.  As far as I
>> know, during that period, Jon delegated ccTLDs and Network Solutions
>> added them to the root at Jon’s direction.  We have no record of the
>> terms and conditions under which these delegations occurred prior to
>> 1994, when RFC 1591 was issued.
>> The Cooperative Agreement was somewhat ambiguous about “ownership” and
>> “authority.”  In 1993, when the Cooperative Agreement was signed,
>> there were some 7500 registered domain names.
>>  https://www.nsf.gov/news/special_reports/cyber/internet.jsp.  It is
>> clear that the National Science Foundation had a right to a copy of
>> the data base, but other rights were less clear.  The situation was
>> complicated by the fact that the IANA functions – so presumably the
>> authority to modify the authoritative root – was performed by USC/ISI
>> under a regular government procurement contract with DARPA.  Did that
>> mean DARPA had authority to control changes to the authoritative root?
>>  I don’t think anyone really knows.  Maybe the answer lies in the
>> Postel archives, which have not been made available by USC.  And
>> finally, it should be noted that throughout this period there were no
>> formal agreements with the root server operators in the US and
>> elsewhere (Japan, Sweden, UK as I recall).  As a practical matter, it
>> is the root server operators who determine which root is authoritative
>> (as Jon once demonstrated). So, call the situation murky.
>> In 1997, the Cooperative Agreement was transferred from the National
>> Science Foundation to the Department of Commerce, and beginning that
>> summer, the DOC conducted several public consultations about the
>> future of DNS governance.  In 1998, the DOC announced that it was
>> prepared to recognize a representative, private-sector organization to
>> manage the DNS.  While the global community undertook to develop an
>> appropriate government, in September of 1998, the Cooperative
>> Agreement between Network Solutions and the DOC was set to expire.  As
>> part of the extension of that agreement, Network Solutions (which may
>> have become Verisign by that time) agreed that it would not make
>> changes to the authoritative root without the consent of the DOC.
>>  That agreement was intended to preserve the stability of the DNS
>> during the transition, and to prevent Network Solutions from
>> undermining the transition (not saying that it intended to do so, just
>> a safeguard).  The amendment 11 provision formally inserted the USG
>> into DNS governance issues, but it was not the first time.  For
>> example, in connection with some litigation regarding the addition of
>> new TLDs – in 1997 or early 1998 – USC/ISI and Network Solutions asked
>> the DOC whether a large group of names should be added at the behest
>> of a particular private party, and the DOC instructed USC and NetSol
>> that they should not be added, particularly in light of the
>> consultations then underway.
>> Your question about whether or not the USG has a basis for its “claim”
>> of authority over the root is a bit metaphysical.  The USC clearly has
>> the right to prevent Verisign from modifying the authoritative root.
>>  Whether or not it had the right before Amendment 11, Verisign gave
>> the DOC that right by contract in that amendment.  The USG’s authority
>> to determine which root serves as the authoritative root and who
>> operates that root is not spelled out in black and white anywhere that
>> I know of – it is something that happened along the way, a byproduct
>> of contract and the passage of time, and certainly not an inherently
>> governmental function.  To the extent there ever was “property” -
>> e.g., in the form of USG funded root server hardware, for example, I
>> am confident that such property is long past its useful life and no
>> longer in service.
>> What we know for sure is that Verisign operates the authoritative root
>> and the DOC has the contractual authority to tell Verisign not to make
>> a change to the root.  That right reflects a contractual agreement
>> between two parties, and does not seem to me to be a delegation of
>> authority over USG “property.”  Accordingly, I think the USG has the
>> right to transfer authority for changes to the root in the manner
>> contemplated here.  To be sure, this transfer was in fact contemplated
>> expressly in Amendment 11, when the DOC and Verisign agreed that the
>> USG had the right to direct Verisign to follow the directions
>> of “Newco” (which subsequently became ICANN).  
>> Of course, I’m sure you and I could come up with all kinds of
>> interesting scenarios that would complicate this process.  
>> B
>> J. Beckwith Burr
>> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>> Office: + 1.202.533.2932  Mobile: 
>> +1.202.352.6367  / becky.burr at neustar.biz
>> <mailto:becky.burr at neustar.biz> / www.neustar.biz <http://www.neustar.biz>
>> From: List for the work of CCWG-Accountability Legal SubTeam
>> <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>>
>> Reply-To: "ccwg-accountability5 at icann.org
>> <mailto:ccwg-accountability5 at icann.org>"
>> <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>>
>> Date: Saturday, April 25, 2015 at 6:11 AM
>> To: "ccwg-accountability5 at icann.org
>> <mailto:ccwg-accountability5 at icann.org>"
>> <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>>
>> Cc: Lisse Eberhard <directors at omadhina.NET
>> <mailto:directors at omadhina.NET>>, Accountability Community
>> <accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>>
>> Subject: [Acct-Legal] Objection (Re: [CCWG-ACCT] Nomcom as a UA -
>> legal question)
>> I have about have it with the unappointed participant of a vested
>> interest making decisions. 
>> Never mind that he just is not entitled to make the ones at hand.
>> Under the Charter or in any other way! Technically this triggers
>> billable hours, so even formally it may not withstand an audit.
>> Yes, read it s objection, for the record.
>> I repeat my demand for the question whether the USG has in fact a base
>> for its "claim" (for the lack of a better word) to the root, and the
>> consequences thereof (if it does not, we have an idea what this means
>> already, if does, may it transfer it (an asset (of sorts)) in the
>> manner proposed, and how does all of this affect (cc)TLDs (when
>> looking at this in chronological batches).
>> The absolute only reason I can see to ignore or avoid the question, is
>> knowing or being concerned about the answer, but not having this done
>> creates an accountability issue in itself.
>> I do note, by the way, at last reading of my email the deafening
>> silence about the conflict between the IPC lobbyist's statement about
>> what he alleged as to have said in the Legal SubTeam meeting of
>> 2015-04-08 and the transcript of what he actually did say.
>> I have no issues with anyone representing anyone's interests and even
>> as aggressively and flouting rules as Americans businesses are so
>> admired for all over the world, by the way. If I had that kind of
>> money I'd also get me one of these onto both CWG and CCWG and
>> influence the outcome. 
>> Whatever it takes...
>> el
>> -- 
>> Sent from Dr Lisse's iPad mini
>> On Apr 25, 2015, at 03:50, List for the work of CCWG-Accountability
>> Legal SubTeam <ccwg-accountability5 at icann.org
>> <mailto:ccwg-accountability5 at icann.org>> wrote:
>>> Holly,
>>> Yes, please proceed to answer the questions posed in Avri's email.
>>> Thanks!
>>> Greg
>>> On Friday, April 24, 2015, List for the work of CCWG-Accountability
>>> Legal SubTeam <ccwg-accountability5 at icann.org
>>> <mailto:ccwg-accountability5 at icann.org>> wrote:
>>>     Thanks Greg. I take it that the Legal SubTeam would like us to
>>>     add this to the list of questions we are answering. Holly
>>>     Sent with Good (www.good.com
>>>     <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.good.com&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=RdybPy8TbR7c7h3IlR5bPcQCTJDS_jn3H1ou6QCMt2g&s=56zqe3hUK0XR7TPLW9twh6rUu596w9xw5hayp7ZefME&e=>)
>>>     **
>>>     ------------------------------------------------------------------------
>>>     *From:* ccwg-accountability5-bounces at icann.org
>>>     <javascript:_e(%7B%7D,'cvml','ccwg-accountability5-bounces at icann.org');>
>>>     on behalf of List for the work of CCWG-Accountability Legal SubTeam
>>>     *Sent:* Friday, April 24, 2015 05:54:47 PM
>>>     *To:* Avri Doria; ccwg-accountability5 at icann.org
>>>     <javascript:_e(%7B%7D,'cvml','ccwg-accountability5 at icann.org');>
>>>     *Cc:* accountability-cross-community at icann.org
>>>     <javascript:_e(%7B%7D,'cvml','accountability-cross-community at icann.org');>
>>>     *Subject:* Re: [Acct-Legal] [CCWG-ACCT] Nomcom as a UA - legal
>>>     question
>>>     Avri,
>>>     I am forwarding your question to the Legal Sub Team list.
>>>     Greg
>>>     On Fri, Apr 24, 2015 at 6:51 PM, Avri Doria <avri at acm.org
>>>     <javascript:_e(%7B%7D,'cvml','avri at acm.org');>> wrote:
>>>         Hi,
>>>         I am confused as to how this works.  Please forgive my
>>>         questions.  This has less to do with the proposal I made then
>>>         with trying to understand the nature of a UA.  I had not
>>>         realized until yesterday that the membership model was as
>>>         popular as it has been defined to be.  I had also not
>>>         realized that we were down to membership or designator model
>>>         as our only choices until today.
>>>         What qualifies the Nomcom as an association?  It can't be the
>>>         people, as there is no continuity, except among the staff.
>>>         and  some overlap in chairs as last year's chair, this years'
>>>         chair and next year's possible chair,  sit togehter each
>>>         year. I guess that  is a bit of natural person continuity. 
>>>         Is that chair thread significant?
>>>         Or is that it is always formed according to same bylaw, even
>>>         if all of the people are different, that is a qualifying
>>>         mark? Is being a differnt instantiation of the same process
>>>         sufficient to define a UA, even if there is no continuity of
>>>         natural persons?
>>>         thanks
>>>         avrl
>>>         Note: I would have sent this to the legal list, but i never
>>>         managed to get subscribed that one as far as I can tell.
>>>         ------------------------------------------------------------------------
>>>         Avast logo
>>>         <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avast.com_&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=DmDxd6OBVbVviJ0bKhNSgtOIUEqQL6AirJh7eDpUsEU&s=BbTCVGCbBIMnUzDFTJxsKMsQaRToxgTqcClvl8btg0w&e=>
>>>         This email has been checked for viruses by Avast antivirus
>>>         software.
>>>         www.avast.com
>>>         <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avast.com_&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=DmDxd6OBVbVviJ0bKhNSgtOIUEqQL6AirJh7eDpUsEU&s=BbTCVGCbBIMnUzDFTJxsKMsQaRToxgTqcClvl8btg0w&e=>
>>>         _______________________________________________
>>>         Accountability-Cross-Community mailing list
>>>         Accountability-Cross-Community at icann.org
>>>         <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community at icann.org');>
>>>         https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>         <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=DmDxd6OBVbVviJ0bKhNSgtOIUEqQL6AirJh7eDpUsEU&s=BBtc2gSQ6xx-8hQj971xCh1hpBiCNJTzLxwacPC0vFk&e=>
>>>     ****************************************************************************************************
>>>     This e-mail is sent by a law firm and may contain information
>>>     that is privileged or confidential.
>>>     If you are not the intended recipient, please delete the e-mail
>>>     and any attachments and notify us
>>>     immediately.
>>>     ****************************************************************************************************
>>> _______________________________________________
>>> Ccwg-accountability5 mailing list
>>> Ccwg-accountability5 at icann.org <mailto:Ccwg-accountability5 at icann.org>
>>> https://mm.icann.org/mailman/listinfo/ccwg-accountability5
>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ccwg-2Daccountability5&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=RdybPy8TbR7c7h3IlR5bPcQCTJDS_jn3H1ou6QCMt2g&s=IORpAYZjSuO42f-cvuATcY_2GvsL7nXOeZYVfE7RKSg&e=>

Dr. Eberhard W. Lisse  \        / Obstetrician & Gynaecologist (Saar)
el at lisse.NA            / *     |   Telephone: +264 81 124 6733 (cell)
PO Box 8421             \     /
Bachbrecht, Namibia     ;____/

More information about the Accountability-Cross-Community mailing list