[Discussion-igo-rc] Problem Statement, and additional thoughts/notes

Sun Feb 26 13:32:43 UTC 2017

Dear Phil, Dear All,

The issue relevant to the discussion at hand is not the scope of IGO immunities for every activity in which IGOs might possibly engage. What is germane to the current discussion is the issue of IGO immunities with respect to the protection of IGO names and identifiers. This is a narrow issue on which Prof. Swaine concluded that a claim for immunities was “colorable or even likely to prevail” even where a court applies a stringent test.

Introducing a debate about whether or not IGOs enjoy “absolute immunity” expands the discussions far beyond what is necessary to address the question of how best to protect IGO identifiers in the DNS and what accommodations we should enjoy in dispute resolution mechanisms.

As a procedural matter, my understanding was that Monday’s call was about Red Cross identifiers, not IGO identifiers.

Kind regards,

Jon
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From: discussion-igo-rc-bounces at icann.org [mailto:discussion-igo-rc-bounces at icann.org] On Behalf Of Phil Corwin
Sent: samedi 25 février 2017 20:49
To: James M. Bladel; discussion-igo-rc at icann.org
Subject: Re: [Discussion-igo-rc] Problem Statement, and additional thoughts/notes

James:

Thanks for raising that concern about the Problem Statement. I have one to add, and it is central to any properly informed discussion of CRP for IGOs.

In regard to the Edited Problem Statement from Jorge Cancio<https://community.icann.org/download/attachments/64062340/IGO%20Problem%20Statement%20-%20Jorge%20Cancio%20edits%20over%20USG%20RC%20version.docx?version=1&modificationDate=1486688293000&api=v2> (received 8 February 2017, edits to IGO/USG version), the current draft reads:
Where practicable, any protection mechanisms to be developed should take advantage of similar mechanisms that have been created for protecting other legal rights should protect IGOs against the reputational risks associated with fraud in the DNS and should minimize risks to members of the public who are often targeted by individuals posing as IGOs or IGO officials. These protections, which should also take into account IGOs’ unique status, in particular their immunity from the jurisdiction of national courts, should also be worked out in tandem with the ongoing policy work being done by the GNSO’s Policy Development Process (PDP) Working Group on IGO-INGO Curative Rights.

In regard to the portion of that statement I have highlighted, I have posted two comments as follows, but the text of the Statement remains unchanged to date:

1.       As I commented on the original version of this document, the assertion that IGOs have "immunity from the jurisdiction of national courts" is factually incorrect. The correct legal analysis is far more nuanced.

2.       To further amplify, the legal analysis provided by Prof. Edward Swaine that is included in the initial report of the CRP WG makes clear that the answer to whether an IGO enjoys immunity in a particular legal action is "it depends". Those dependencies include the underlying legal foundation of the IGO, the facts and circumstances of the dispute, and the analytical approach employed by the court in which the legal action is brought.

ICANN has no authority to establish blanket global immunity for all IGOs in all potential circumstances. Rather, the decision on whether an asserted defense of immunity is valid is for the court to decide. Further, ICANN has no authority to deny domain registrants their access to relevant statutory legal rights in the context of alternative DRPs. That is just as objectionable as, for example, seeking to deny registrants their relevant national privacy rights in the context of RAA enforcement.

The current language of the draft can be read as implying that IGOs enjoy blanket immunity from national court jurisdiction, when in fact the judicial immunity enjoyed is of more limited scope and varies between nations. The WG that I co-chaired understood that the request of IGOs for separate DRPs allowing no appeal to a national court was based on a presumption of absolute immunity and, as this was the central issue underlying our recommendations, we took the time to seek and employ an expert on international law to inform the WG of the recognized contemporary scope of IGO immunity.

I therefore propose that the highlighted phrase be amended to read “in particular their varied and limited immunity from the jurisdiction of national courts” so that our discussion can proceed on the basis of a correct understanding of applicable law.

As for the concluding phrase of that last sentence, that IGO protections “should also be worked out in tandem with the ongoing policy work being done by the GNSO’s Policy Development Process (PDP) Working Group on IGO-INGO Curative Rights” I think we all need to share a common understanding of what “in tandem” means, and the procedural  relationship of this discussion group to the PDP WG that I co-chair. Unlike the subject of permanent protections for IGOs in new gTLDs – which are the subject of long-standing and conflicting GNSO recommendations and GAC advice – the subject of IGO CRP is being addressed by an active GNSO PDP, with an Initial Report and recommendations currently out for comment until March 1 (noting that early next week we shall announce an extension of that comment period to accommodate the GAC’s request for such additional time).  While this discussion group can be a very useful forum for discussing the overall subject and narrowing different perspectives, my understanding is that the GNSO position is that it cannot be a separate forum for any negotiations aimed at a final resolution of the CRP matter.

Therefore, GAC members and IGOs interested in influencing the WG’s Final Report should take the opportunity to file comments for the consideration of WG members, and should not rely solely upon discussion group dialogue as a means of input to our ongoing work. Later this year, when we deliver a final report and recommendations for Council consideration, its decision on which of those it wishes to accept or reject cab be based  upon all factors that Council members deem relevant. Assuming that the Council forwards IGO CRP policy recommendations to the ICANN Board, the GAC will then have its rightful opportunity to submit any advice it deems relevant to the Board as well.

I hope the points I have raised are useful in framing our initial discussion this coming Monday.

Best regards,
Philip

Philip S. Corwin, Founding Principal
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From: discussion-igo-rc-bounces at icann.org<mailto:discussion-igo-rc-bounces at icann.org> [mailto:discussion-igo-rc-bounces at icann.org] On Behalf Of James M. Bladel
Sent: Saturday, February 25, 2017 12:19 AM
To: discussion-igo-rc at icann.org<mailto:discussion-igo-rc at icann.org>
Subject: [Discussion-igo-rc] Problem Statement, and additional thoughts/notes

Thomas, and All -

First, thank you for your contributions to prepare for our facilitated discussion in Copenhagen. On behalf of the GNSO, I apologize for the silence on our side to date, but I can assure you that we have been extensively discussing this matter, both at the Council level and among our smaller group.

We have concerns regarding the Problem Statement, in that we’re not convinced it is currently fit-for-purpose and we hope that we can flesh this out some on our call next week. We’re also very keen to see the briefing material that is being prepared by Bruce to assist our discussions. It may be that this duplicates much of the language in the Problem Statement as it is currently drafted. Attached for your information and consideration is an amended version of the Problem Statement document, along with our comments and edits. Additionally, we’ve attached a short list of questions and suggestions that we think should be clarified on our first call.

We also welcome the opportunity to discuss your comments below regarding the ‘global public interest’. While we don’t necessarily disagree with the sentiment, we do believe it is important that the term ‘global public interest’ as it is described in the ICANN bylaws is not misconstrued. To that end we refer to the relevant bylaws here:

The Bylaws refer to the “global public interest” as a Core Value, requiring ICANN to:

Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent

Additionally, ICANN’s Articles of Incorporation state:

the Corporation shall, except as limited by Article IV hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Such global public interest may be determined from time to time.  Any determination of such global public interest shall be made by the multistakeholder community through an inclusive bottom-up multistakeholder community process.

The Bylaws do require ICANN to duly consider the “public policy” input of governments, but determinations regarding the global public interest are firmly rooted in the multistakeholder process, of which both the GNSO and the GAC are part.

Thank you, and we are looking forward to our call next week.

J.

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