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

Matthew Shears mshears at cdt.org
Sat Mar 7 18:07:52 UTC 2015


Perhaps we can say the following "policy authority (ccTLD administrator 
or other as applicable)"

On 3/6/2015 11:05 PM, Martin Boyle wrote:
> I see problems in that the ccTLD is often the policy authority and I 
> am not sure I know what the implications will be if we suggest it isn't!
>
> Sent from my iPhone
>
> On 6 Mar 2015, at 22:36, Erick Iriarte <eiriarte at iriartelaw.com 
> <mailto:eiriarte at iriartelaw.com>> wrote:
>
>> Is a good option possible.
>>
>> Erick
>>
>>> El 6/3/2015, a las 11:14, Gomes, Chuck <cgomes at verisign.com 
>>> <mailto:cgomes at verisign.com>> escribió:
>>>
>>> Would it work to say “policy authority or ccTLD administrator as 
>>> applicable”?
>>> Chuck
>>> *From:*cwg-stewardship-bounces at icann.org 
>>> <mailto:cwg-stewardship-bounces at icann.org>[mailto: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
>>>     <mailto: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]
>>>     *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]
>>>         *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]
>>>             *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]
>>>                 *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>_______________________________________________
>>>                     CWG-Stewardship mailing list
>>>                     CWG-Stewardship at icann.org
>>>                     <mailto:CWG-Stewardship at icann.org>
>>>                     https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>>
>>> _________________________________________________________________
>>> Erick Iriarte
>>> Área de Derecho de Nuevas Tecnologias
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>>
>>
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