[Party1] Fwd: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
Jordan Carter
jordan at internetnz.net.nz
Wed Mar 11 21:21:29 UTC 2015
---------- Forwarded message ----------
From: Drazek, Keith <kdrazek at verisign.com>
Date: 5 March 2015 at 13:52
Subject: Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
To: Tijani BEN JEMAA <tijani.benjemaa at fmai.org.tn>, Phil Corwin <
psc at vlaw-dc.com>, Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br>,
Steve DelBianco <sdelbianco at netchoice.org>, Accountability Cross Community <
accountability-cross-community at icann.org>
Cc: ACCT-Staff <acct-staff at icann.org>, "ccwg-accountability4 at icann.org" <
ccwg-accountability4 at icann.org>
Hi Tijani,
In light of Fadi's statement during his February 25 Senate testimony (as
quoted by Phil Corwin in another email), there may be a risk to a
successful and timely IANA Transition if the AoC's US jurisdiction language
is NOT incorporated into the bylaws.
Fadi's statement that ICANN "stands by" the requirements in the AoC (and
the US jurisdiction requirement in particular) and that he believes
incorporating the obligations into the bylaws is a good idea has set an
expectation. If that expectation is not addressed and met by the community
proposal, it will be very difficult for NTIA to explain to Congress why it
was omitted. This could be used by some to try to derail the transition
that we all want to happen.
Also, it's important to note that Fadi's statement was part of his prepared
remarks, not an off-hand comment. In those prepared remarks, he referenced
the July 2014 letter that was sent to Steve Crocker by Senators Thune and
Rubio where they called for the AoC obligations to be made permanent. As
such, Fadi went out of his way to assure the Senators that ICANN would
remain subject to US jurisdiction and that he expected the AoC obligations
to be incorporated into the bylaws, as they had requested.
I hope this additional context helps.
Regards,
Keith
*From:* accountability-cross-community-bounces at icann.org [mailto:
accountability-cross-community-bounces at icann.org] *On Behalf Of *Tijani BEN
JEMAA
*Sent:* Wednesday, March 04, 2015 6:25 PM
*To:* 'Phil Corwin'; 'Pedro Ivo Ferraz da Silva'; 'Steve DelBianco';
'Accountability Cross Community'
*Cc:* 'ACCT-Staff'; ccwg-accountability4 at icann.org
*Subject:* Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss
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
<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
<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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--
Jordan Carter
Chief Executive
*InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter
*A better world through a better Internet *
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