[CWG-Stewardship] Subject: Updated Legal Scoping Document (Version 3)

[John Poole]

Dear Greg *et al*:
*I very much object to the Legal Scoping Document (Version 3)* in that it
confuses the question I asked to be included (and was the first to ever
raise, to my knowledge, in this whole process--see my comment to the
proposal draft in December): the idea, in the context of Contract Co, of a
Trust and Board of Trustees to replace the Stewardship role played by NTIA.
Draft 3 now includes parts of my question mixed up with an internal
solution, proposed lately, to somehow make ICANN a trustee. That is not
what I asked. The Legal Scoping Document (Version 3) as now drafted, is
confusing and misleading as to the two separate sets of issues being
raised. Please separate out my question, you may add it at the end of the
Legal Scoping Document:

"Could, or should, Contract Co. take the form of a Trust established under
American law, registered with a state court (e.g., California or New York)
[which ensures that the terms of the Trust will at all times in the future
be met, see: http://caselaw.findlaw.com/ny-court-of-appeals/1418851.html ],
the Trust to have a Board of Trustees (incorporated in the same state the
Trust is registered), selected from, and representing, the global
multistakeholder community, and the Trust receiving an assignment and/or
conveyance from the US government, Department of Commerce (NTIA), of all
the US government's rights and duties included within its Stewardship role
over the Internet and DNS, under existing contracts with ICANN, and
Versign, or otherwise. Further, that the Trust have as its primary purpose
and duty, to ensure the continuous operation of a free, open, secure, and
stable global internet DNS, including the Internet Root Zone, by the
selection of an IANA functions operator (presently ICANN), and Internet
Root Zone maintainer (presently Verisign), each for a term of years
(subject to termination for cause), and such other terms, conditions, and
covenants necessary or convenient (such as limitation of
registration/renewal fees charged by a market-dominant gTLD registry
operator), in order to carry out the purpose of the Trust and the duty of
the Trustees thereof to act at all times in the wider public interest of
the global multistakeholder community."

I do appreciate all the work you and others are doing for the CWG, but
since, apparently, the choice of, and all communication thereafter with the
yet-to-be-retained independent legal counsel will now be controlled by, and
filtered through, a self-appointed Committee of Four - Jonathan Robinson,
Lise Fuhr, Maarten Simon and you - I do not want independent legal counsel
confused, or to misunderstand the legal issue I have raised on behalf of
the global multistakeholder community. To illustrate, in regard to the
Verisign .COM registry operator agreement, there are actually two
agreements - one agreement is between ICANN and Verisign that grants
Verisign, in effect, a right in perpetuity to operate the market-dominant
.COM registry with no limitation on the registration and renewal fees that
Verisign can charge registrants; the other agreement is between Verisign
and NTIA that caps, or limits, the registration and renewal fees Verisign
can charge registrants of .COM domain names. Therefore, idea that ICANN can
fulfill the stewardship role over the DNS played by NTIA is ludicrous based
on ICANN's own track record. Even ICANN's own original Board Chairman,
Esther Dyson, has lost faith in ICANN's ability to operate in the public
interest, see:
http://www.technologyreview.com/review/428911/icanns-boondoggle/

Best regards,
John Poole
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