[CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft
Matthew Shears
mshears at cdt.org
Sat Mar 7 18:07:52 UTC 2015
Perhaps we can say the following "policy authority (ccTLD administrator
or other as applicable)"
On 3/6/2015 11:05 PM, Martin Boyle wrote:
> I see problems in that the ccTLD is often the policy authority and I
> am not sure I know what the implications will be if we suggest it isn't!
>
> Sent from my iPhone
>
> On 6 Mar 2015, at 22:36, Erick Iriarte <eiriarte at iriartelaw.com
> <mailto:eiriarte at iriartelaw.com>> wrote:
>
>> Is a good option possible.
>>
>> Erick
>>
>>> El 6/3/2015, a las 11:14, Gomes, Chuck <cgomes at verisign.com
>>> <mailto:cgomes at verisign.com>> escribió:
>>>
>>> Would it work to say “policy authority or ccTLD administrator as
>>> applicable”?
>>> Chuck
>>> *From:*cwg-stewardship-bounces at icann.org
>>> <mailto:cwg-stewardship-bounces at icann.org>[mailto:cwg-stewardship-bounces at icann.org]*On
>>> Behalf Of*Erick Iriarte
>>> *Sent:*Wednesday, March 04, 2015 1:27 PM
>>> *To:*Martin Boyle
>>> *Cc:*CWG Stewardship
>>> *Subject:*Re: [CWG-Stewardship] Principles and Criteria that Should
>>> Underpin Decisions on the Transition of NTIA Stewardship: New Draft
>>> Martin
>>> the reason to our disagreement is easy (and with this email i
>>> understand better).
>>> 1. For you: "In particular, the national policy authority should be
>>> respected and no additional … ” (your original phrase)
>>> “policy authority” means ccTLD administrator
>>> 2. For me: "In particular, the national policy authority should be
>>> respected and no additional ...” (in the context of the parragraph)
>>> means Governmental Authority
>>> As i assume that your paragraph is in the second option, i’m not
>>> agree with that option and for that reason i proposed put the
>>> relation with local laws for each ccTLD.
>>> With your message i understand your position is in option 1, so i
>>> suggest change the words or be clear when you said “policy
>>> authority” and said “cctld administrator” if that is the situation.
>>> Yours,
>>> Erick
>>> In particular, the nationals laws related to each ccTLD should be
>>> respected and no additional requirements
>>> For you the word: national
>>>
>>> El 4/3/2015, a las 19:04, Martin Boyle
>>> <Martin.Boyle at nominet.org.uk
>>> <mailto:Martin.Boyle at nominet.org.uk>> escribió:
>>> Sorry, Erick, I still do not agree. And I fail to see why
>>> national policy authority (which could be the registry, with or
>>> without a legal base, as well as your preferred legal based
>>> route) is an issue for you. Why do you want to give the IANA
>>> functions operator a say over a ccTLD that does not have a
>>> formal legal agreement?
>>> We have authority over .uk. There is no legal basis for this,
>>> just that we set up a not-for-profit company to run the .uk
>>> domain name space. We have company law, we have various
>>> criminal and competition laws we have to abide by, just like any
>>> other organisation. But we do not need a government decree to
>>> allow us to do this.
>>> I’m happy for you to devise an additional clause that takes care
>>> of the issues that give you concerns, because I’m very clearly
>>> not understanding the subtle point you are making – sorry. But
>>> this clause is all about the IANA functions operator stepping
>>> beyond its remit and trying to impose requirements on ccTLDs and
>>> as such it is quite a major issue and will definitely be a
>>> redline for many European ccTLDs and their governments (who
>>> equally do not want extraterritoriality impacting their national
>>> environment.
>>> Hope this helps
>>> Martin
>>> *From:*Erick Iriarte [mailto:eiriarte at iriartelaw.com]
>>> *Sent:*04 March 2015 17:11
>>> *To:*Martin Boyle
>>> *Cc:*CWG Stewardship
>>> *Subject:*Re: [CWG-Stewardship] Principles and Criteria that
>>> Should Underpin Decisions on the Transition of NTIA Stewardship:
>>> New Draft
>>> Martin
>>> First Point, we have a situation, some cases for
>>> law/regulation/policies and other is authorithy (some thing that
>>> could be telecom because internet is part of telecom world,
>>> somes intellectual property, others foreign affairs, other egov
>>> offices in others no specific authority )
>>> So i suggest open option (for diversity in legal system and
>>> origin of ccTLDs and relation with governments): "In particular,
>>> the nationals regulations related to each ccTLD” <- if they
>>> haves laws, perfect. If they have authority that authority was
>>> created by a law / regulation .
>>> When we finish this point we advance to the second point.
>>> Erick
>>>
>>> El 4/3/2015, a las 18:00, Martin Boyle
>>> <Martin.Boyle at nominet.org.uk
>>> <mailto:Martin.Boyle at nominet.org.uk>> escribió:
>>> Erick,
>>> The national policy authority would either be the registry
>>> should there not be regulation or the regulator (or
>>> government) if there was. In practice in this latter case
>>> responsibility is likely to be shared as there will be some
>>> areas where one or the other had specific responsibility.
>>> So the current wording does reflect diversity of legal
>>> systems. My concern is that yours focuses only on regulated
>>> or law-based models. And as I mentioned previously, it will
>>> not be acceptable to allow the IANA functions operator to
>>> have a say over .uk just because the UK government does not
>>> see its vocation to run or regulate a TLD.
>>> For the second point, I’m sorry if I was not clear. I do
>>> not want to give the IANA functions operator any role over
>>> .uk registrants. If there is an issue, this would need to
>>> be resolved under UK law.
>>> Thanks
>>> Martin
>>> *From:*Erick Iriarte [mailto:eiriarte at iriartelaw.com]
>>> *Sent:*04 March 2015 14:13
>>> *To:*Martin Boyle
>>> *Cc:*CWG Stewardship
>>> *Subject:*Re: [CWG-Stewardship] Principles and Criteria that
>>> Should Underpin Decisions on the Transition of NTIA
>>> Stewardship: New Draft
>>> Again
>>> talking about “regulation" and not “authority” will be more
>>> open to include more cctlds, we must respect that diversity
>>> of legal systems and also origin of ccTLDs (governmental,
>>> civil society, private sector, academia, )
>>> About the second point, which is your specific proposal
>>> against my proposal?
>>> Erick
>>>
>>> El 4/3/2015, a las 15:02, Martin Boyle
>>> <Martin.Boyle at nominet.org.uk
>>> <mailto:Martin.Boyle at nominet.org.uk>> escribió:
>>> Erick,
>>> Not really: we are not regulated, we devise our own
>>> policies which are not laws or regulations (we are not a
>>> regulator either) and we still do not want the IANA
>>> functions operator feeling that it has the right to
>>> impose rules on us.
>>> I’m sorry: I appear to have missed a second change in
>>> your edits: the addition of “existing registrants’ use
>>> of the ccTLD.” I have similar problems with this, I’m
>>> afraid: I do not think that it is up to the IANA
>>> functions operator to decide what is best for .uk domain
>>> name holders. If we fail to look after registrants’
>>> rights, we are going to see court action in the UK or
>>> lose market share in a very competitive domain name
>>> market. Similarly, if we let or encourage malicious
>>> behaviour in .uk we will fall foul of UK laws or suffer
>>> reputational damage and see (again) a loss of market share.
>>> There might be a principle associated with protecting
>>> registrants, but I’m not sure it ever belongs in an IANA
>>> stewardship transition and certainly not in any increase
>>> of power for the IANA functions operator.
>>> Best
>>> Martin
>>> *From:*Erick Iriarte [mailto:eiriarte at iriartelaw.com]
>>> *Sent:*04 March 2015 12:35
>>> *To:*Martin Boyle
>>> *Cc:*CWG Stewardship
>>> *Subject:*Re: [CWG-Stewardship] Principles and Criteria
>>> that Should Underpin Decisions on the Transition of NTIA
>>> Stewardship: New Draft
>>> Martin
>>> thanks for your message. We can change Law by Regulation
>>> (that including if i’m correct UK and common law system).
>>> Not all the ccTLDs are related to one Authority specific
>>> in all the countries so we must have the most open
>>> option for all.
>>> Yours,
>>> Erick
>>>
>>> El 4/3/2015, a las 13:19, Martin Boyle
>>> <Martin.Boyle at nominet.org.uk
>>> <mailto:Martin.Boyle at nominet.org.uk>> escribió:
>>> Thanks Erick,
>>> In essence you are proposing changing the words
>>> “policy authority” to “laws related to each ccTLD”.
>>> I would have a concern with this in that .uk policy
>>> is developed through our own national process rooted
>>> in the local community and working in a
>>> multi-stakeholder process (and the same is the case
>>> for many other ccTLDs). Our policies are not
>>> written in law, but are based on a national
>>> discussion leading to general consensus.
>>> What I like about the current formulation is that
>>> this policy authority cannot be overturned by a
>>> zealous Californian-based organisation with its own
>>> idea of what is the right way to do things. Your
>>> wording would seem to open this as an option because
>>> our policies are not laws (although they would not
>>> conflict with the UK’s legal requirements).
>>> I’d welcome your thoughts, and any further
>>> explanation of your proposal. Could you see an
>>> alternative that ensured the safeguards that are in
>>> the current text?
>>> Thanks
>>> Martin
>>> *From:*Erick Iriarte [mailto:eiriarte at iriartelaw.com]
>>> *Sent:*04 March 2015 11:38
>>> *To:*Martin Boyle
>>> *Cc:*CWG Stewardship
>>> *Subject:*Re: [CWG-Stewardship] Principles and
>>> Criteria that Should Underpin Decisions on the
>>> Transition of NTIA Stewardship: New Draft
>>> HI Martin,
>>>
>>> I have reviewed your document and thank you for
>>> inviting comments on it.
>>>
>>> i would like to suggest a change in clause h.ii
>>> "ii. For ccTLDs: the IANA Functions Operator should
>>> provide a service without requiring a contract and
>>> should respect the diversity of agreements
>>> and arrangements in place for ccTLDs. In particular,
>>> the nationals laws related to each ccTLD should be
>>> respected and no additional requirements should be
>>> imposed unless they are directly and demonstrably
>>> linked to global security, stability, resilience of
>>> the DNS and existing registrants use of the ccTLD."
>>> Yours, Erick
>>> Erick
>>>
>>> El 3/3/2015, a las 10:09, Martin Boyle
>>> <Martin.Boyle at nominet.org.uk
>>> <mailto:Martin.Boyle at nominet.org.uk>> escribió:
>>> Colleagues,
>>> My apologies, but following the Christmas break
>>> I failed to progress this discussion.
>>> I now attach a revised draft, still with a major
>>> outstanding issue in g. (page 2).
>>> There are two variants for g.ii. One simply
>>> reduces the previous paragraph to read “For
>>> ccTLDs, respect national sovereignty;” at the
>>> request of the GAC. The other is more closely
>>> based on, but shortens, the previous text: “For
>>> ccTLDs, policy decisions may be made locally
>>> through nationally agreed processes in
>>> accordance with national laws and in compliance
>>> with IETF technical standards. Post transition
>>> of the IANA function nothing will be done by
>>> ICANN/IANA to impact the stable operation of
>>> ccTLD Registries and gTLD Registries.”
>>> The draft contains a number of marked up edits
>>> from previous discussions that seem to have
>>> general agreement. For the text redlines:
>>> 1.I have deleted the section heading
>>> “Introduction”: there are no other section
>>> headings, so this appears to be superfluous.
>>> 2.Principles b. and c. (previously sub-clauses
>>> to the heading on security, stability and
>>> resilience) are now stand-alone at the request
>>> of the GAC.
>>> 3.Accountability & transparency (e.):
>>> a.Paragraph i: two edits that appear to have
>>> general agreement.
>>> b.Paragraph ii: a new edit to correct the
>>> text. The new version amends the text to
>>> reflect the sub-heading. The old version put it
>>> the other way around.
>>> c.Paragraph iv: Footnote on capture added as
>>> requested courtesy of Alan Greenberg & Milton
>>> Mueller.
>>> d.Paragraph vi: While I think we all agree on
>>> the need for some form of appeals process, there
>>> is still some debate as to where that should
>>> lie. So for example, the appeals process might
>>> well not be designed by the CWG and might be the
>>> responsibility of the CCWG. For ccTLDs, it might
>>> mean that a third party might have a say over a
>>> national decision on a ccTLD. I flag this in
>>> case further thought is needed in the light of
>>> discussion over the last few days.
>>> 4.Service levels (f.):
>>> a.Paragraph ii: I think the majority view is
>>> that automation should only be for routine
>>> functions (and not for controversial or
>>> subjective decisions such as on redelegations).
>>> b.Paragraph iii: Previously a stand-alone point.
>>> 5.Policy based (g): other than some minor
>>> editing, there are two alternatives for g.ii. as
>>> noted above. I would note that there was no
>>> support in our last discussion to retain g.vi.
>>> (require bottom-up modalities) as this is
>>> treated elsewhere (in particular in the chapeau
>>> text to g.).
>>> 6.Diversity of customers (h.): some (I hope)
>>> minor and uncontroversial edits in the chapeau
>>> and in i. and ii. The text in paragraph iii was
>>> generally agreed.
>>> 7.Separability: modifications to i.i. and i.iii
>>> generally agreed in the last discussion.
>>> 8.Multi-stakeholder principle paragraph j:
>>> generally agreed in the last discussion subject
>>> to concerns about wording (the previous text
>>> appeared to recommend direct involvement in the
>>> management of the IANA function).
>>> <Draft of Principles - updated 3
>>> March.docx>_______________________________________________
>>> CWG-Stewardship mailing list
>>> CWG-Stewardship at icann.org
>>> <mailto:CWG-Stewardship at icann.org>
>>> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>>
>>> _________________________________________________________________
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>>> Área de Derecho de Nuevas Tecnologias
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>>
>>
>
>
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