[CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

[Martin Boyle]

It was helpful of Elise to give us a flavour of the concerns of the GAC.  Sovereignty is a fact of life, we live and work in a jurisdiction subject to local laws.  We do need to recognise that that includes in making policy decisions for a TLD where different governments want different levels of control over the process and where the registry is likely to have other stakeholders that it needs to bring into the process, too.

I'd like to try to bottom out what is a statement of the bleedin' obvious, and what pushes language into the realms of the unacceptable for one side or another!

Without a discussion on the finer points of national sovereignty, aren't we simply trying to find a way of saying that a state has the right to govern itself (give or take a few international treaties and decisions, of course, where the state has ceded a certain amount of autonomy)?  However, the IANA functions operator should not be exposed in the middle of a dispute because there are ramifications to the state's decision.  We must not forget that it will be at fault if it makes a decision based on an unjustified request.

In this light, I would read the GAC communiqué text not as saying that the IANA functions operator must obey any instruction given by a government (who issued the instruction?  What was the authority that it had to do so?), but that the [FOIWG report] should not prevent the IANA functions operator from acting in line with a legitimate request, properly made and where the final battle has happened.  I wasn't there, of course, when the communiqué was drafted, so I will have to rely on Elise for chapter and verse on what the text conveys for her and her government.

As I said in the call earlier today, I will continue to work with Elise and Paul to try to identify wording for 7.ii that recognises that not all policy decisions are made locally and that some are not made through nationally agreed processes.  (The .uk policy process, for example, is not a formally agreed process and certainly not a government-mandated one:  it is a multi-stakeholder engagement exercise that has general agreement and support from the different parties.  Its legitimacy comes from its openness and the fairness of the process.)

And thanks to everyone for their patience!

Martin



From: Milton L Mueller [mailto:mueller at syr.edu]
Sent: 05 March 2015 11:52
To: Lindeberg, Elise; Martin Boyle; CWG Stewardship
Cc: cwg-stewardship-bounces at icann.org
Subject: RE: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Elise
I know it is an important issue for GAC, but it is also an important issue for the global Internet community. As part of that, I don't think the GAC's language here is acceptable:

, nothing in the FOIWG report should be read to limit or constrain applicable law and governmental decisions, or the IANA operator´s ability to act in line with a request made by the relevant government.

Perhaps someone can correct me if I am wrong, but I would have to challenge the statement that there should be no limits on a government's demands and that IANA must passively respond to _any_ request made by the relevant government. Doesn't this contradict RFC 1591, which makes the ccTLD operator a trustee for _both_ the national and the global internet community. I think the reason for this is that people did not want to make a ccTLD a political football that changes with any change in local political fortunes. One can respect national sovereignty over policy but one must also respect one's obligations to the global internet community.
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