[WP2] By law change on international law WAS Re: IRP provider appointment Was: updated documents from this morning

[Burr, Becky]

The change was to clarify that ICANN has subjected itself to international law – which includes conventions, etc.  This language is exactly the language that is in the Articles of Incorporation.  I’m happy to put applicable in front of everything

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

From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Wednesday, July 29, 2015 at 2:36 PM
To: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>
Cc: Paul Twomey <Paul.Twomey at argopacific.com<mailto:Paul.Twomey at argopacific.com>>, "wp2 at icann.org<mailto:wp2 at icann.org>" <wp2 at icann.org<mailto:wp2 at icann.org>>, Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>>
Subject: Re: [WP2] By law change on international law WAS Re: IRP provider appointment Was: updated documents from this morning

Article 4 currently reads:

 The Corporation shall operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law and, to the extent appropriate and consistent with these Articles and its Bylaws, through open and transparent processes that enable competition and open entry in Internet-related markets.

It seems that we moved the word "applicable" so that it no longer applies "international conventions and local law" and now only applies to "local law."  I can't recall the rationale for this change.  Based on Paul's email, I'm concerned that it is not a change for the better.  Any idea why we made this change, and it what it was supposed to accomplish?  If we don't have a good reason to make the change, I suggest we should not make it.  If it was a concern about ambiguity, then I suggest we put "applicable" in front of both "international conventions" and "local law."

Greg

On Wed, Jul 29, 2015 at 2:27 PM, Burr, Becky <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>> wrote:
Good question.  The reference to international law and conventions has been in the Articles of Incorporation from day 1, however.  I think if we take out the comma and make it “relevant principles of international law and international conventions” that reduces the potential problem.  But international information security is only within ICANN’s mission if it relates to DNS security and stability


J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932<tel:%2B%201.202.533.2932>  Mobile:  +1.202.352.6367<tel:%2B1.202.352.6367>  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz>

From: Paul Twomey <Paul.Twomey at argopacific.com<mailto:Paul.Twomey at argopacific.com>>
Date: Wednesday, July 29, 2015 at 2:04 PM
To: "wp2 at icann.org<mailto:wp2 at icann.org>" <wp2 at icann.org<mailto:wp2 at icann.org>>, Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>, Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>>
Subject: Re: By law change on international law WAS Re: [WP2] IRP provider appointment Was: updated documents from this morning

While I do not think this is exactly the sort of agreement about which I am positing, I would draw your attention to the recent China-Russian declaration of April 30.

A rough translation is attached.

The official announcement that is on the Russian government web site says:

"The directive approves a draft Russian-Chinese intergovernmental agreement on cooperation in ensuring international information security (hereinafter, the Agreement).
The Agreement aims to create a legal and organisational framework for Russian-Chinese cooperation in promoting international information security.
The Agreement identifies the principal threats and determines the main areas, principles, forms and mechanisms of cooperation in this area.
The Russian Foreign Ministry has been tasked with conducting talks with the Chinese side and, after coming to terms, signing this Agreement on behalf of the Russian Government.
The Agreement reflects Russia’s interests and position regarding the provision of international information security and consolidates Russian-Chinese strategic partnership, and its signing will help to promote mutually beneficial cooperation between Russia and China."


Three main issues in the agreement

1. the document is signed, because the parties are concerned about using the ICT for “undermining the sovereignty and the security of the states, and interference in their internal affairs… destabilization of  internal political and social-economic environment…”
2. The two governments confirm that "the national sovereignty and the international norms and regulations, result from this sovereignty, are defining the countries' behavior within the framework of their activities, connected to the use of ICT and the jurisdiction of the nation states over the information infrastructure on their territories, as well as the state has a sovereign right to define and to implement governmental policy, related to the information-telecommunication network "Internet" (everywhere in the original they call it like that), including security,
3. The two governments aim at creating a multilateral, democratic and transparent international system for management of the information-telecommunication network ‘Internet’ with the purpose of internationalization of the management of the Internet, and to make sure states have equal rights to participate in this process, including democratic management (governance) of the Internet core resources and their fair distribution..


Previously such agreements have been of significance for ICANN as part of the political environment in which it has to operate.  But it has been committed to its global mission.   Is the amendment to the bylaws inadvertantly making it an internal governance matter for ICANN?


Paul


On 7/30/15 3:55 AM, Paul Twomey wrote:
+1 to Malcolm's comment on how much has been achieved.

I am sorry that I was not able to attend Paris, but may I ask a question about the amendment including international conventions in:

1.  In performing its Mission, ICANN must operate in a manner consistent with its Bylaws for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law, international conventions, and applicable local law and through open and transparent processes that enable competition and open entry in Internet-related markets.  Specifically, ICANN’s action must:

Did the group consider the situation where two or more authoritarian countries sign an international statement or convention recognizing that the DNS in their countries can only be coordinated by their country institutions or worse recognizing that it can only be done by multilateral organizations etc.    Would this constitute an "international convention" - a much less universal term than "international law" - and hence would ICANN be bound by this bylaw to recognize this?  Hence not be able to run a complete Root Zone in the IANA, not be able to enter into registrar contracts for registrars in those countries etc.

Paul

On 7/29/15 8:25 PM, Malcolm Hutty wrote:

Becky,

These papers looks very good, and shows how much we have achieved. We
seem to be just about done, so congratulations.

I can find on the paper just one note of disagreement still being
recorded, relating to the appointment of the IRP Provider.

* Greg had proposed that the appointment process be conducted by ICANN
and the community jointly.

* I had said I thought that this was likely to be unworkable, and that
it would be sufficient to have ICANN consult the community on the terms
of the tender process, but selection itself should be by ICANN.

Where did we get to on this? I remember a back-and-forth between me and
Greg on this list, but don't remember it being discussed by the group.

-> If it hasn't been decided by WP2 collectively, may I ask that you
test the group's opinion as to whether they prefer my approach or Greg's?

-> If it has been decided and I just missed it, and the collective view
was to prefer Greg's proposal, you may remove the footnote noting my
disagreement: it is not my view that this is such a serious issue that I
would want to preserve my objection as a minority statement to go into
the Final Report for Public Comment.

Kind Regards,

Malcolm.




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