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

James Gannon james at cyberinvasion.net
Tue Apr 28 10:36:36 UTC 2015

Cooperative agreement 1993:


On 28/04/2015 11:31, "Dr Eberhard Lisse" <el at lisse.NA> wrote:

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