[Ws2-jurisdiction] RES: mandate re ccTLD issues

Mon Sep 18 16:25:38 UTC 2017

First, and most importantly, this is an issue seeking a problem.  Since it is motivated by the prospect of US court behavior interfering with ccTLDs, it is at least useful to acknowledge that the only time anyone asked the US courts to do so they rejected the request.  There is no reason that I know of to think that any subsequent request would be treated differently – and, indeed, as I wrote in an earlier post every reason to think that US courts will reason as the DC Circuit did and follow its rationale.  In short, the first point is that no recommendation on this issue is needed at all because it is addressing a non-concern that is really just a non-threat, kind of like making sure ICANN is not subject to a Board coup.  You can imagine it but it isn’t realistic and thus not worth our time.

If we were to think about it, then I have to imagine that the proponents are looking at the second bundle of categories.  That is, my reading is that proponents are asking that ICANN be recommended to seek immunity from seizure under law.  Since one can readily imagine such seizure actions be lodged globally, and since as we’ve discussed frequently ICANN is subject to legal process almost everywhere it operates, the only recommendation that makes any sense would be to seek some form of global immunity from seizure for ccTLDs.  Stated thus, this becomes another of those “nice to have international law” issues that in practice has no chance of being realized, and thus should be opposed on impracticality grounds.

My view is that this issue does not merit further consideration and should not be the basis of any recommendation to the Board

Paul

Paul Rosenzweig

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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Monday, September 18, 2017 2:50 AM
To: Kavouss Arasteh <kavouss.arasteh at gmail.com>
Cc: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] RES: mandate re ccTLD issues

All,

First, I would like to clarify that Jordan is a participant in this Subgroup (see https://community.icann.org/display/WEIA/Jurisdiction).

Second, the "seizure" of a ccTLD (if that were allowed) would lead to a request for redelegation of the ccTLD.  Presumably, the current manager of the ccTLD would dispute that redelegation demand.  The PDP that Jordan refers to would cover all disputes relating to redelegation of a ccTLD.

It seems we are being asked to recommend that the ccNSO PDP on ccTLD disputes exclude disputes relating to attempted redelegations result from a seizure.  This would mean that any dispute mechanism for ccTLD redelegations would be unavailable to the current ccTLD manager.  This raises a few issues:

*	Can this Subgroup and the CCWG make a recommendation on the scope of a ccTLD PDP (here, that the upcoming ccNSO PDP exclude disputes of ccTLD redelegations arising from a seizure of the ccTLD)?
*	Can this Subgroup and the CCWG make a recommendation that ccTLD managers will be barred from using the ccNSO dispute resolution procedure (DRP) to contest a redelegation because of the circumstances leading to that redelegation?
*	Who is this recommendation being made to?  

*	If it is ICANN, then a "recommendation" is in fact something that the ICANN Board must adopt and put into action unless the Board rejects it.  (So, "recommendation" is probably an understatement of the true effect in that case.)  

*	Would the ICANN Board accept these recommendations, and could it then impose these recommendations on the ccNSO PDP?  
*	Could it impose these recommendations on all ccTLD managers (whether or not ccNSO members)? 

*	If it is the ccNSO, then that runs into the issue (faced several times in WS1) of the capacity of the CCWG to make recommendations directly to SO/ACs and not to the ICANN BOard.  My recollection of WS1 is that we determined the CCWG could not not make recommendations to any SO/AC.  Even if the CCWG could make such a recommendation, what would the force and effect of such a recommendation be?  What power in our charter or the ICANN Bylaws would force the SO/AC to comply with this recommendation? Unless there is such power, then the SO/AC would be free to reject the recommendation.  (So, "recommendation" is probably an overstatement of the true effect in this case.).

*	Putting all this aside, would there be broad support in this Subgroup for either of these recommendations?

On the other hand, it may be that we are not being asked to limit the ccNSO or ccTLD managers in any way.  In other words, a dispute regarding an attempt to redelegate a ccTLD as a result of a seizure could use the new ccNSO DRP.  If that's the case, what are we being asked to do?  

*	Make a recommendation that, if adopted, would compel ICANN to seek to immunize ccTLDs from seizure in judicial actions anywhere in the world?  
*	Or just in the US, allowing seizure to be attempted in any other court?  
*	Or everywhere but the home court of the country associated with ccTLD (keeping mind that ccTLDs are managed in various ways, by various kinds of entities)? 
*	(Assuming for the sake of argument that we have the power to make such a recommendation in the first place,) would there be broad support in this Subgroup for any of these recommendations?  

I would be curious to know how members of the Subgroup would answer these questions, and any other questions that come to mind.

Greg

On Mon, Sep 18, 2017 at 12:43 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com <mailto:kavouss.arasteh at gmail.com> > wrote:

Dear Jordan

Dear All, 

Thank you very much for your prompt reply as a participant to the CCWG and indirectly to the subgroup.

The example I gave was not and is not and will not be categorize as dispute.

There was no dispute there was referring to ccTLD as being an ATTACHED PROPERTY.

This ihas Nothing to do with the Policy that you referred to.

We have full right to recommend who such case should be dealt with without recognizing any right for any Government or its Court to deal with that issue.

You are diverging the view  as we are not talking of delegation or redelegation or transfer or revocation .We are talking of seizure. Thjis is purely a jurisdictional issue and has no relevance to PDP.

You are trying to associate that to PDP which is incorrect.

Please allow us to do our work and kindly not be confused with the  PDP.

Perhaps there are people who wish to do so which is totally counterproductive. 

Regards

Kavouss 

On Mon, Sep 18, 2017 at 4:54 AM, Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz> > wrote:

Dear all, dear Kavouss

Thank you for your email.

The PDP I am referring to is that set out in the ICANN bylaws for the ccNSO: <https://www.icann.org/resources/pages/governance/bylaws-en/#annexB>

I have tried to be as clear as I can be on the process question.  The policy regarding delegations of ccTLD managers is in RFCs and has most recently been understood through the lens of Framework of Interpretation, a joint effort between the ccNSO and the GAC (see https://features.icann.org/adoption-framework-interpretation-cctld-delegations-and-redelegations for 2015 Board adoption of the report). 

Arising from that work the ccNSO has commenced a PDP dealing with the first of two issues, that being how to deal with the retirement of a ccTLD.

There is another PDP to come, on how to resolve disputes regarding the delegation, revocation and retirement of ccTLDs.

It seems to me that the example you raise below is one that would give rise to a dispute, and it is the mechanism to resolve such disputes that is not clear today. That's why the ccNSO will conduct a PDP to make it clear.

My interventions have aimed only to remind everyone in this group that the CCWG can't make policy on this subject. It has no authority or scope to do so, because policy on these ccTLD subjects is the responsibility of the ccNSO. 

My purpose in offering that reminder is so that all of the participants in the group can choose where to focus their discussion. There might be other matters where  the group can make recommendations with more impact. The group might think that offering views on those is more important. Or, it might think that offering views for the ccNSO to consider is more important. I haven't got a view either way - the ccNSO's sole responsibility for making policy on ccTLD matters isn't in doubt.

I just want to make sure that everyone is clear about what this group can do, and on the specific point of ccTLD policy, what it cannot do. I have no view about the GNSO. I am not suggesting this group or the CCWG "consult" the ccNSO per se. Even if the ccNSO could respond with an opinion about jurisdiction matters, that would still be of no use to the CCWG in making recommendations. Any recommendations that dealt with ccTLD policy would lead to the CCWG's recommendations on the subject being unable to be adopted by the ICANN Board.

Since this is only one very narrow matter in the wide range of jurisdiction-related topics, I am sure there is no need to close this group or deny Greg the right to keep doing the hard work he is doing to be the rapporteur in this interesting and vital area.

All best regards,

Jordan

On 18 September 2017 at 02:47, Arasteh <kavouss.arasteh at gmail.com <mailto:kavouss.arasteh at gmail.com> > wrote:

Dear Jordan

I am not sure what type of PDP you suggest for unilateral decision of American court for delegation or transfer of .ir to third party .

We wish to limit such type of order as well as the potential influence of US government or any other government to interfere with the ccTLD of any other country based on founded or non founded claims 

If neither ICANN not any other entity is authorised to intervene or interfere with ccTLD of any country or any geographic territory that equally applies to US government, US court and say other government and its court

Fortunately New Zealand or U.K. ccTLD were not yet subject to such interference 

Pls kindly clarify your position . In other word are you supporting such interference or opposing to that

Reply to Milton

If you believe that the sub group should consult GNSO and Jordan and Nigel believe that the subgroup should consult ccNSO to address such disturbing unilateral influence of US government  and its court and any other government and its court then we need to close the shop of Grec and stop all discussions 

Regards

Kavouss   

Sent from my iPhone

On 15 Sep 2017, at 22:25, Mueller, Milton L <milton at gatech.edu <mailto:milton at gatech.edu> > wrote:

The most that the CCWG would have the scope and competence to do with any such recommendation would be to make it as a suggestion to the ccNSO to consider. Neither the Board nor any other party can require the ccNSO to conduct a PDP, and without such a PDP, no policy affecting ccTLD matters can be made. 

That’s fine. The same is true of the GNSO and the ASO for that matter. This subgroup identifies problems and recommends solutions. 
It’s up to others to develop policies to implement the solutions. 

Dr. Milton Mueller

Professor, School of Public Policy

Georgia Institute of Technology

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