[CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
Carrie Devorah
carriedev at gmail.com
Fri Mar 6 22:31:38 UTC 2015
Phil
ICANN "lost" its not for profit as I see it once it began quadrupling
"profits."
Also, at the Hearing, Fadi says ICANN is about policy. I have asked this
before. I am asking again, how does auctioning of gTLD's fit in to this
policy definition?
Sincerely
Carrie Devorah
www.centerforcopyrightintegrity.com
On Wed, Mar 4, 2015 at 6:25 PM, Tijani BEN JEMAA <
tijani.benjemaa at fmai.org.tn> wrote:
> Phil,
>
>
>
> I also was watching the senate hearing, and confirm that Fadi said that
> ICANN would remain subject to US jurisdiction. I also confirm that this is
> a very important point.
>
> It is important because the NTIA announcement of the stewardship
> transition calmed very much people who were always complaining that it is
> unfair that a single country control the Internet, a global network. Now
> that we have this achievement, it would be a pity to loose it because we
> want to put in our bylaws that ICANN will remain acting under the US
> jurisdiction.
>
>
>
> I know and agree that the US jurisdiction is one of the best for the not
> for profit corporation. I don’t say that we need to move ICANN to another
> jurisdiction, but I think we don’t have to make it a condition.
>
>
>
> We need a stable and predictable legal environment, and we also need to
> build trust and make people stop complaining. So being diplomatic in our
> work is really necessary for a successful and sustainable transition.
>
>
>
>
> --------------------------------------------------------------------------------
>
> *Tijani BEN JEMAA*
>
> Executive Director
>
> Mediterranean Federation of Internet Associations (*FMAI*)
>
> Phone: + 216 41 649 605
>
> Mobile: + 216 98 330 114
>
> Fax: + 216 70 853 376
>
>
> --------------------------------------------------------------------------------
>
>
>
>
>
>
>
>
>
>
>
> *De :* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *De la part de* Phil
> Corwin
> *Envoyé :* mercredi 4 mars 2015 23:29
> *À :* Pedro Ivo Ferraz da Silva; 'Steve DelBianco'; Accountability Cross
> Community
> *Cc :* ACCT-Staff; ccwg-accountability4 at icann.org
> *Objet :* Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
>
>
>
> Pedro:
>
>
>
> This is a very important point. I was in the room at the Senate Commerce
> hearing last week, and also at another event at the US Chamber of Commerce
> two days later. At both events Fadi stressed that ICANN would remain
> subject to US “jurisdiction" post-transition, not just maintain its nominal
> HQ in the US. As you correctly point out, there is a big “difference
> between "headquarter location" and "legal presence/legal jurisdiction".
>
>
>
> Choice of legal jurisdiction is a very important point for multiple
> reasons, among them:
>
> · Stable and predictable legal regime for contracted parties. As
> all of ICANN’s authority vis-à-vis registries and registrars is based on
> its contracts with them, reliable and predictable contract enforcement is
> a key consideration. The US is generally regarded as having one of the best
> legal systems in the world.
>
> · Design of both the IANA and ICANN accountability measures. Both
> the CWG and the CCWG are going to engage independent legal counsel to
> advise them on the design of accountability measures within the context of
> California public benefits corporation law. If the legal context changes
> those accountability measures may not fit properly within it; they may
> become less effective or even unworkable.
>
> · Security concerns. As a US corporation, ICANN is forbidden by
> OFAC regulations form engaging in any transactions with entities classified
> as criminal or terrorist. This consideration is particularly potent for the
> Administration and Congress.
>
>
>
> As to your point that “The community should be given the ability to
> decide, in the future, which jurisdiction better serves the purpose of
> ICANN acting in accordance to the global public interest.” , that is not
> necessarily foreclosed, at some future date, depending on what mechanisms
> are provided for Bylaws amendments.
>
>
>
> But for the immediate future those engaged in this transition exercise
> should have some idea whether ICANN’s continued legal existence as a
> non-profit California corporation is acceptable to other nations or whether
> it will become the new “irritant” (as described by Secretary Strickling)
> that replaces the IANA counterparty status as cause for complaint and basis
> for calls for further alterations in its structure and status.
>
>
>
> This is central to the issue of whether the transition we are designing
> will be stable for the foreseeable future or will just be a short-term
> transitional stage from which new initiatives for change are launched not
> long after the ink dries.
>
>
>
> Regards,
>
> Philip
>
>
>
>
>
>
>
> Philip S. Corwin, Founding Principal
>
> Virtualaw LLC
>
> 1155 F Street, NW
>
> Suite 1050
>
> Washington, DC 20004
>
> 202-559-8597/Direct
>
> 202-559-8750/Fax
>
> 202-255-6172/cell
>
>
>
> Twitter: @VlawDC
>
>
>
> "Luck is the residue of design" -- Branch Rickey
>
>
>
>
>
> -----Original Message-----
> From: accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] On Behalf Of Pedro Ivo
> Ferraz da Silva
> Sent: Wednesday, March 04, 2015 4:55 PM
> To: 'Steve DelBianco'; Accountability Cross Community
> Cc: ACCT-Staff; ccwg-accountability4 at icann.org
> Subject: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
>
>
>
> Dear Steve,
>
>
>
> Thank you very much for the update on the Stress Tests.
>
>
>
> With respect to ST #15, it is very valuable, but I think we should be very
> cautious about proposed measures.
>
>
>
> The following option makes sense and should be further debated: " If ICANN
> board voted to vacate a legal presence, the community veto could enable
> reversal of that decision".
>
>
>
> However, we anticipate objections to the alternative solution below:
>
>
>
> "One proposed measure is to import AoC provisions into the ICANN bylaws,
> and dispense with the bilateral AoC with NTIA. Bylaws would be amended to
> include AoC commitments 8, requiring it to maintain legal presence in the
> US, where it is subject to legal redress by any aggrieved party."
>
>
>
> Paragraph 8 of the AoC requires US legal presence most probably due to the
> present scenario where the US government (i.e.NTIA) is the steward of the
> IANA functions. Once that link is no longer there, and especially because
> that stewardship is being inherited by the global multistakeholder
> community (stressing the word "global") a legal presence in the US (or in
> any other specific country) should not be etched in stone. The community
> should be given the ability to decide, in the future, which jurisdiction
> better serves the purpose of ICANN acting in accordance to the global
> public interest.
>
>
>
> During yesterday's call, some colleagues mentioned ICANN CEO's Testimony
> in the American Senate last week. What he stated was literally: " Further,
> ICANN has its global headquarters in the United States, and there are no
> plans for that to change". Although such a decision/affirmation may be
> debatable, it is important, once again, to stress the difference between
> "headquarter location" and "legal presence/legal jurisdiction". Under e.g.
> an international jurisdiction, an entity could potentially be headquartered
> anywhere.
>
>
>
> Regards,
>
>
>
> Sec. Pedro Ivo Ferraz da Silva
>
> Division of Information Society
>
> Ministry of External Relations - brazil
>
> T: + 55 61 2030-6609
>
>
>
>
>
> -----Mensagem original-----
>
> De: ccwg-accountability4-bounces at icann.org [
> mailto:ccwg-accountability4-bounces at icann.org
> <ccwg-accountability4-bounces at icann.org>] Em nome de Steve DelBianco
> Enviada em: segunda-feira, 2 de março de 2015 23:36
>
> Para: Accountability Cross Community
>
> Cc: ACCT-Staff; ccwg-accountability4 at icann.org
>
> Assunto: [ST-WP] [CCWG-ACCT] Additional Stress Tests to discuss
>
>
>
> For tomorrow’s call, we applied 4 more of our stress tests against the
> draft package of proposed accountability measures.
>
>
>
> Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the
> attached draft document.
>
>
>
> Stress Test:
>
>
>
> #1. Change authority for the IANA Root Zone ceases to
> function, in part or in whole.
>
> #2. Delegation authority for the IANA Root Zone ceases to
> function, in part or in whole.
>
>
>
>
>
> Consequence: interference with existing policy relating to
> IANA Root Zone and/or prejudice to the security and stability of one or
> several TLDs.
>
>
>
>
>
> Existing Accountability Measures:
>
>
>
> Under the present IANA contract, NTIA can revoke ICANN’s
> authority to perform IANA functions and re-assign to different
> entity/entities.
>
>
>
> After NTIA relinquishes the IANA contract, this measure
> will no longer be available.
>
>
>
>
>
> Proposed Accountability Measures:
>
>
>
> The CWG planning the IANA stewardship transition might
> design mechanisms and structures that enable separation, such that the IANA
> functions could be readily revoked and re-assigned.
>
>
>
> To manage the revocation of IANA functions, the CWG might
> also propose an emergency backup provider and procedures, pending
> re-assignment of the IANA functions.
>
>
>
>
>
> Preliminary Conclusions:
>
>
>
> This threat is directly related to the transition of IANA
> stewardship
>
>
>
> Existing measures would be inadequate after NTIA
> terminates the IANA contract.
>
>
>
> At this point, CWG’s recommendations are still in
> development.
>
>
>
> ———————————————————
>
>
>
> Stress Test:
>
>
>
> #24. An incoming Chief Executive institutes a “strategic
> review” that arrives at a new, extended mission for ICANN. The Board,
> having just hired the new CEO, approves the new mission and strategy
> without community consensus.
>
>
>
>
>
> Consequence: Community ceases to see ICANN as the
> community’s own mechanism for discharging limited technical functions, and
> views ICANN as an independent, sui generis entity with its own agenda, not
> necessarily supported by the community. Ultimately, community questions why
> ICANN’s original functions should remain controlled by a body that has
> acquired a much broader and less widely supported mission.
>
>
>
>
>
> Existing Accountability Measures:
>
>
>
> As long as NTIA controls the IANA contract, ICANN could
> risk losing IANA functions if it were to expand scope too broadly.
>
>
>
> The Community has some input in ICANN budgeting and Strat
> Plan, and could register objections to plans and spending on extending
> ICANN’s mission.
>
>
>
> California’s Attorney General has jurisdiction over
> non-profit entities acting outside Bylaws or Articles of Incorporation.
>
>
>
>
>
> Proposed Accountability Measures:
>
>
>
> One proposed measure is empowering the community to veto
> ICANN’s proposed annual budget. This measure could block a proposal by
> ICANN to increase its expenditure on extending its mission beyond what the
> community supported.
>
>
>
> If the ICANN board voted to approve the CEO’s plans, one
> proposed measure would give the community standing to veto a board decision.
>
>
>
> Another proposed measure is empowering the community to
> challenge a board decision, referring it to an Independent Review Panel
> (IRP) with the power to issue a binding decision. [What would be the
> standard used for this review?]
>
>
>
>
>
> Preliminary Conclusions:
>
>
>
> This threat is directly related to the transition of IANA
> stewardship
>
>
>
> Existing measures would be inadequate after NTIA
> terminates the IANA contract.
>
>
>
> Proposed measures in combination are adequate.
>
>
>
> ———————————————————
>
>
>
>
>
> Stress Test:
>
>
>
> #15. ICANN terminates its legal presence in a nation where
> Internet users or domain registrants are seeking legal remedies for ICANN’s
> failure to enforce contracts, or other actions.
>
>
>
> Consequence: affected parties could be prevented from
> seeking legal redress for commissions or omissions by ICANN.
>
>
>
>
>
> Existing Accountability Measures:
>
>
>
> As long as NTIA controls the IANA contract, ICANN could
> risk losing IANA functions if it were to move in order to avoid legal
> jurisdiction.
>
>
>
> Paragraph 8 of the AoC requires ICANN to remain
> headquartered in the US, but the AoC can be terminated by ICANN at any
> time. As long as NTIA controls the IANA contract, ICANN feels pressure to
> maintain the AoC.
>
>
>
>
>
> Proposed Accountability Measures:
>
>
>
> One proposed measure is to give the community standing to
> veto a board decision. If ICANN board voted to vacate a legal presence,
> the community veto could enable reversal of that decision.
>
>
>
> One proposed measure is to import AoC provisions into the
> ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would
> be amended to include AoC commitments 8, requiring it to maintain legal
> presence in the US, where it is subject to legal redress by any aggrieved
> party.
>
>
>
> If ICANN’s board proposed to amend the AoC provisions
> added to the bylaws, another proposed measure would empower the community
> to veto that proposed bylaws change.
>
>
>
>
>
> Preliminary Conclusions:
>
>
>
> This threat is directly related to the transition of IANA
> stewardship
>
>
>
> Existing measures would be inadequate after NTIA
> terminates the IANA contract.
>
>
>
> Proposed measures improve upon existing measures, and may
> be adequate.
>
>
>
>
>
>
>
> _______________________________________________
>
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> Accountability-Cross-Community at icann.org
>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
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--
Sincerely
CARRIE Devorah
562 688 2883
DISCLAIMER :
With the continuing crossing and interfacing of platforms both on & off
line both with & without our knowledge nor approval to note nothing sent
over the Internet anymore is ever private nor should be presumed to be so.
If it is that much of a secret, say nothing. If you must? Take a lesson
from our military- hand write the note, chew then swallow
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