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

Fri Mar 6 11:09:31 UTC 2015

I think that still begs the question of what "policy authority" means or
refers to.  I suggest we either define it in some fashion (eg, a
parenthetical with examples) or use a different term altogether. Maybe that
term has a standard meaning in some circles, but elsewhere its meaning is
unclear.

Greg

On Friday, March 6, 2015, Gomes, Chuck <cgomes at verisign.com> wrote:

>  Would it work to say “policy authority or ccTLD administrator as
> applicable”?
>
>
>
> Chuck
>
>
>
> *From:* cwg-stewardship-bounces at icann.org
> <javascript:_e(%7B%7D,'cvml','cwg-stewardship-bounces at icann.org');>
> [mailto:cwg-stewardship-bounces at icann.org
> <javascript:_e(%7B%7D,'cvml','cwg-stewardship-bounces at icann.org');>] *On
> Behalf Of *Erick Iriarte
> *Sent:* Wednesday, March 04, 2015 1:27 PM
> *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
>
>
>
> 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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> Área de Derecho de Nuevas Tecnologias
>
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