[CCWG-ACCT] [Acct-Legal] Objection (Re: Nomcom as a UA - legal question)
Dr Eberhard Lisse
el at lisse.NA
Tue Apr 28 10:31:51 UTC 2015
Where do I find that agreement?
el
On 2015-04-26 20:50, Dr Eberhard W Lisse wrote:
> Becky,
>
> thank you for your support.
>
> So, we DO need to find out what the basis is.
>
> el
>
> --
> Sent from Dr Lisse's iPad mini
>
> On Apr 26, 2015, at 19:35, Burr, Becky <Becky.Burr at neustar.biz
> <mailto:Becky.Burr at neustar.biz>> wrote:
>
>> Eberhard,
>>
>> The answer to your question re USG “claim” to the root is – as I’m
>> sure you know – somewhat convoluted. Without jumping into the “what
>> the IPC rep said and what the record reflects” controversy (about
>> which I know nothing) here is my take on the situation.
>>
>> The USG entered into a “cooperative agreement" with Network Solutions
>> in 1993, under which Network Solutions operated the authoritative
>> root, and also provided both registry and registrar services to TLDs
>> other than ccTLDs. Until he died in 1998, Jon Postel was in charge of
>> IANA functions through a contract between the University of Southern
>> California Information Sciences Institute and DARPA. As far as I
>> know, during that period, Jon delegated ccTLDs and Network Solutions
>> added them to the root at Jon’s direction. We have no record of the
>> terms and conditions under which these delegations occurred prior to
>> 1994, when RFC 1591 was issued.
>>
>> The Cooperative Agreement was somewhat ambiguous about “ownership” and
>> “authority.” In 1993, when the Cooperative Agreement was signed,
>> there were some 7500 registered domain names.
>> https://www.nsf.gov/news/special_reports/cyber/internet.jsp. It is
>> clear that the National Science Foundation had a right to a copy of
>> the data base, but other rights were less clear. The situation was
>> complicated by the fact that the IANA functions – so presumably the
>> authority to modify the authoritative root – was performed by USC/ISI
>> under a regular government procurement contract with DARPA. Did that
>> mean DARPA had authority to control changes to the authoritative root?
>> I don’t think anyone really knows. Maybe the answer lies in the
>> Postel archives, which have not been made available by USC. And
>> finally, it should be noted that throughout this period there were no
>> formal agreements with the root server operators in the US and
>> elsewhere (Japan, Sweden, UK as I recall). As a practical matter, it
>> is the root server operators who determine which root is authoritative
>> (as Jon once demonstrated). So, call the situation murky.
>>
>> In 1997, the Cooperative Agreement was transferred from the National
>> Science Foundation to the Department of Commerce, and beginning that
>> summer, the DOC conducted several public consultations about the
>> future of DNS governance. In 1998, the DOC announced that it was
>> prepared to recognize a representative, private-sector organization to
>> manage the DNS. While the global community undertook to develop an
>> appropriate government, in September of 1998, the Cooperative
>> Agreement between Network Solutions and the DOC was set to expire. As
>> part of the extension of that agreement, Network Solutions (which may
>> have become Verisign by that time) agreed that it would not make
>> changes to the authoritative root without the consent of the DOC.
>> That agreement was intended to preserve the stability of the DNS
>> during the transition, and to prevent Network Solutions from
>> undermining the transition (not saying that it intended to do so, just
>> a safeguard). The amendment 11 provision formally inserted the USG
>> into DNS governance issues, but it was not the first time. For
>> example, in connection with some litigation regarding the addition of
>> new TLDs – in 1997 or early 1998 – USC/ISI and Network Solutions asked
>> the DOC whether a large group of names should be added at the behest
>> of a particular private party, and the DOC instructed USC and NetSol
>> that they should not be added, particularly in light of the
>> consultations then underway.
>>
>> Your question about whether or not the USG has a basis for its “claim”
>> of authority over the root is a bit metaphysical. The USC clearly has
>> the right to prevent Verisign from modifying the authoritative root.
>> Whether or not it had the right before Amendment 11, Verisign gave
>> the DOC that right by contract in that amendment. The USG’s authority
>> to determine which root serves as the authoritative root and who
>> operates that root is not spelled out in black and white anywhere that
>> I know of – it is something that happened along the way, a byproduct
>> of contract and the passage of time, and certainly not an inherently
>> governmental function. To the extent there ever was “property” -
>> e.g., in the form of USG funded root server hardware, for example, I
>> am confident that such property is long past its useful life and no
>> longer in service.
>>
>> What we know for sure is that Verisign operates the authoritative root
>> and the DOC has the contractual authority to tell Verisign not to make
>> a change to the root. That right reflects a contractual agreement
>> between two parties, and does not seem to me to be a delegation of
>> authority over USG “property.” Accordingly, I think the USG has the
>> right to transfer authority for changes to the root in the manner
>> contemplated here. To be sure, this transfer was in fact contemplated
>> expressly in Amendment 11, when the DOC and Verisign agreed that the
>> USG had the right to direct Verisign to follow the directions
>> of “Newco” (which subsequently became ICANN).
>>
>> Of course, I’m sure you and I could come up with all kinds of
>> interesting scenarios that would complicate this process.
>>
>> B
>>
>>
>>
>> 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 <http://www.neustar.biz>
>>
>>
>> From: List for the work of CCWG-Accountability Legal SubTeam
>> <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>>
>> Reply-To: "ccwg-accountability5 at icann.org
>> <mailto:ccwg-accountability5 at icann.org>"
>> <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>>
>> Date: Saturday, April 25, 2015 at 6:11 AM
>> To: "ccwg-accountability5 at icann.org
>> <mailto:ccwg-accountability5 at icann.org>"
>> <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>>
>> Cc: Lisse Eberhard <directors at omadhina.NET
>> <mailto:directors at omadhina.NET>>, Accountability Community
>> <accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>>
>> Subject: [Acct-Legal] Objection (Re: [CCWG-ACCT] Nomcom as a UA -
>> legal question)
>>
>> I have about have it with the unappointed participant of a vested
>> interest making decisions.
>>
>> Never mind that he just is not entitled to make the ones at hand.
>> Under the Charter or in any other way! Technically this triggers
>> billable hours, so even formally it may not withstand an audit.
>>
>> Yes, read it s objection, for the record.
>>
>> I repeat my demand for the question whether the USG has in fact a base
>> for its "claim" (for the lack of a better word) to the root, and the
>> consequences thereof (if it does not, we have an idea what this means
>> already, if does, may it transfer it (an asset (of sorts)) in the
>> manner proposed, and how does all of this affect (cc)TLDs (when
>> looking at this in chronological batches).
>>
>> The absolute only reason I can see to ignore or avoid the question, is
>> knowing or being concerned about the answer, but not having this done
>> creates an accountability issue in itself.
>>
>>
>> I do note, by the way, at last reading of my email the deafening
>> silence about the conflict between the IPC lobbyist's statement about
>> what he alleged as to have said in the Legal SubTeam meeting of
>> 2015-04-08 and the transcript of what he actually did say.
>>
>> I have no issues with anyone representing anyone's interests and even
>> as aggressively and flouting rules as Americans businesses are so
>> admired for all over the world, by the way. If I had that kind of
>> money I'd also get me one of these onto both CWG and CCWG and
>> influence the outcome.
>>
>> Whatever it takes...
>>
>> el
>> --
>> Sent from Dr Lisse's iPad mini
>>
>> On Apr 25, 2015, at 03:50, List for the work of CCWG-Accountability
>> Legal SubTeam <ccwg-accountability5 at icann.org
>> <mailto:ccwg-accountability5 at icann.org>> wrote:
>>
>>> Holly,
>>>
>>> Yes, please proceed to answer the questions posed in Avri's email.
>>>
>>> Thanks!
>>>
>>> Greg
>>>
>>> On Friday, April 24, 2015, List for the work of CCWG-Accountability
>>> Legal SubTeam <ccwg-accountability5 at icann.org
>>> <mailto:ccwg-accountability5 at icann.org>> wrote:
>>>
>>> Thanks Greg. I take it that the Legal SubTeam would like us to
>>> add this to the list of questions we are answering. Holly
>>>
>>>
>>>
>>> Sent with Good (www.good.com
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.good.com&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=RdybPy8TbR7c7h3IlR5bPcQCTJDS_jn3H1ou6QCMt2g&s=56zqe3hUK0XR7TPLW9twh6rUu596w9xw5hayp7ZefME&e=>)
>>> **
>>>
>>>
>>> ------------------------------------------------------------------------
>>> *From:* ccwg-accountability5-bounces at icann.org
>>> <javascript:_e(%7B%7D,'cvml','ccwg-accountability5-bounces at icann.org');>
>>> on behalf of List for the work of CCWG-Accountability Legal SubTeam
>>> *Sent:* Friday, April 24, 2015 05:54:47 PM
>>> *To:* Avri Doria; ccwg-accountability5 at icann.org
>>> <javascript:_e(%7B%7D,'cvml','ccwg-accountability5 at icann.org');>
>>> *Cc:* accountability-cross-community at icann.org
>>> <javascript:_e(%7B%7D,'cvml','accountability-cross-community at icann.org');>
>>> *Subject:* Re: [Acct-Legal] [CCWG-ACCT] Nomcom as a UA - legal
>>> question
>>>
>>> Avri,
>>>
>>> I am forwarding your question to the Legal Sub Team list.
>>>
>>> Greg
>>>
>>> On Fri, Apr 24, 2015 at 6:51 PM, Avri Doria <avri at acm.org
>>> <javascript:_e(%7B%7D,'cvml','avri at acm.org');>> wrote:
>>>
>>> Hi,
>>>
>>> I am confused as to how this works. Please forgive my
>>> questions. This has less to do with the proposal I made then
>>> with trying to understand the nature of a UA. I had not
>>> realized until yesterday that the membership model was as
>>> popular as it has been defined to be. I had also not
>>> realized that we were down to membership or designator model
>>> as our only choices until today.
>>>
>>> What qualifies the Nomcom as an association? It can't be the
>>> people, as there is no continuity, except among the staff.
>>> and some overlap in chairs as last year's chair, this years'
>>> chair and next year's possible chair, sit togehter each
>>> year. I guess that is a bit of natural person continuity.
>>> Is that chair thread significant?
>>>
>>> Or is that it is always formed according to same bylaw, even
>>> if all of the people are different, that is a qualifying
>>> mark? Is being a differnt instantiation of the same process
>>> sufficient to define a UA, even if there is no continuity of
>>> natural persons?
>>>
>>>
>>> thanks
>>>
>>>
>>> avrl
>>>
>>> Note: I would have sent this to the legal list, but i never
>>> managed to get subscribed that one as far as I can tell.
>>>
>>>
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--
Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar)
el at lisse.NA / * | Telephone: +264 81 124 6733 (cell)
PO Box 8421 \ /
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