[CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft
Erick Iriarte
eiriarte at iriartelaw.com
Wed Mar 4 18:26:42 UTC 2015
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> 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 <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 <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 <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 <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>_______________________________________________
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Erick Iriarte
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