[CCWG-ACCT] Legal question

Sat Apr 25 20:33:27 UTC 2015

The flaw is in the premise of the question -- that the United States asserts
ownership of or a property interest in the IANA function.  The US position
(http://www.ntia.doc.gov/speechtestimony/2015/testimony-assistant-secretary-
strickling-senate-committee-commerce-science-and-) is that the IANA function
is a service: "Federal agencies can discontinue obtaining such services when
they no longer need them.  As NTIA made clear at the time of its Statement
of Policy, it intended only to procure the IANA functions services until
such time as the transition to private sector management of the Internet DNS
was complete."

Paul

Paul Rosenzweig
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-----Original Message-----
From: Dr Eberhard W Lisse [mailto:el at lisse.NA] 
Sent: Saturday, April 25, 2015 12:34 PM
To: accountability-cross-community at icann.org
Cc: ccwg-accountability5 at icann.org; Lisse Eberhard
Subject: Re: [CCWG-ACCT] Legal question

Avri,

at issue is not that it is the US (government) which has a "claim"
on it, but whether this "claim" allows the USG to do what it wants to do,
and how this affects (ccTLD)s.

Under whose oversight something was created does not matter, it matters by
whom (including acting on behalf of), dependence does mean equally little in
this regards.

Having factual control over something does not mean it is right (or even
legal).

This is not scholarly or academic, at all.

Let me give you (a real life) example:

	Namibia inherited stewardship of an island (as large as a
	baseball field) in a river next to Botswana at independence
	from South Africa.  Until independence South Africa had
	stewardship, and the Botswana government did not feel in a
	position to challenge that.  After Namibia's independence
	Botswana occupied it and when this went to (International)
	Court, it turned out stewardship had belonged to Botswana
	all along.

	So it was duly returned by Namibia.

see http://www.icj-cij.org/docket/index.php?sum=505&p1=3&p2=3&case=98&p3=5
http://en.wikipedia.org/wiki/Sedudu (in particular the second last
paragraph) and
http://webworld.unesco.org/water/wwap/pccp/cd/pdf/educational_tools/course_m
odules/reference_documents/sharinginternwatercases/sciencehistory.pdf

	Now imagine the South African government had sold the island
	to someone who then had invested significantly in a Lodge
	type of thing...

How on earth can you give something away that doesn't belong to you?

Or if it does, what rules does the USG have for disposing of assets (such as
this)?

By the way, the view that The IANA Function is being executed well is most
certainly not shared by many ccTLD Managers.

There have been significant issues with response times in the past (which is
an operational issue and would fall under CWG, and seems to have imporev a
lot anyway) but in particular the ones that are being or have been leaned on
by the IANA Department, or where the ccTLD has been revoked under extremely
dubious circumstances (.PN, .KE, .AU and recently .ML to name but a few) but
also the ccNSO which chartered the FoI Wg (with the GAC() for this very
reason.

Which I why am concerned about the lack of accountability in this regards
needing to be improved before the transition.

greetings, el

On 2015-04-25 16:31 , Avri Doria wrote:
> 
> Hi,
> 
> Fool that I sometimes am, i have been thinking about your question 
> from a CCWG participant perspective, and from the perspective of a 
> USAn.
> 
> Also not a international lawyer or lawyer of any sort.
> 
> On 25-Apr-15 10:31, Dr Eberhard W Lisse wrote:
>> This does not even address the question whether the USG has any claim 
>> to the root, and the numerous consequences originating from this.
> 
> I do not think of the US as having a claim on it.  But I am sure that 
> this is an issue legal scholars could have a good discussion on.  It 
> would be interesting* to see some exegesis from the global legal 
> scholars on this issue.  I bet it would make for fascinating reading, 
> and I am sure there are many different interesting scholarly 
> perspectives on it.
> 
> Interesting issue, but I do not see it as a gating issue for the 
> _Accountability_ CCWG
> 
> I do think of the US as currently having responsibility for it. It was 
> created under their oversight, for better or worse the world has 
> become dependent on it, and until they can hand the responsibility to 
> others, it is their problem.  They are trying, for the most part, to 
> hand the Stewardship responsibilities off to an appropriate 
> multi-stakeholder group.
> 
> There seems to be a broad view, though not universal, that ICANN does 
> a decent job as the current IANA function operator.  But while they do 
> the job of IANA well, there is also broad agreement, though not 
> universal, that ICANN needs to become more accountable as part of any 
> transfer of Stewardship.  US oversight, and international pressure on 
> the US on they way they do the oversight, has been important in trying 
> to keep ICANN in line. Lose that, and people start to worry.
> 
> So I think that whether the US has a claim to the root or not is an 
> interesting side issue, and I love interesting side issues, but I do 
> not believe it is material to the work this group has been assigned to 
> do.
> 
> I do not support passing this on to the legal firms we have, as it is 
> not gating for this group and is not in either law firms skill set or 
> terms of reference, as I understand them.  As I am not a member of the 
> legal sub-team, my opinion on this is without weight, but I felt like 
> expressing it this fine Saturday morning.
> 
> cheers
> 
> avri
> 
> 
> * Should the US congress decide it is in the position to stop a 
> transition that there is broad agreement on, then this scholarly 
> research might become useful.  But that will not be a task for this 
> group either.
[...]
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