[At-Large] R: R: Is ICANN's oversight really moving away from the US government?

Mon Apr 11 01:24:04 UTC 2016

Hi,

this idea (Affirmations of Commitments between ICANN and many other parties) was indeed around by 2006-2007.

It was further fleshed out in the report of the Strategy Panel on ICANN's Role in the Internet Governance Ecosystem, https://www.icann.org/en/system/files/files/report-23feb14-en.pdf which was chaired by Vint Cerf and in which many of us, among which Carlton and myself, not only took part but formed part of the core drafting team.

The idea of a web of Affirmations of Commitments picks up the "web of trust" concept on which we developed the present instantiation of the At Large in the 2003 ICANN reform, as well.

It should be noted that Affirmations of Commitments (AoC) are not bilateral contracts in which two parts become bound to each other. They are simultaneous unilateral statements by two parties; of course they are agreed upon and coordinated, but they do not entail mutual responsibilities and obligations in a single document like contracts do.

Establishing a workable set of AoC's entails a difficult task: they must all mean the same, yet as they take place with many different parties, there will be an explosive trend to make them different. As we know, for example, common-law and positive-law countries - and entities based in them - will have to ask for many different clauses. Language for a commitment by a country will necessarily have to include their national language; commercial entities and non-profits or governments will have a hugely varied set of requirements. 

So, to proceed along this way, the most promising avenue would likely be to establish a firm set of commitments that all parties must make and honor, then choose and segment a set of parties in order of combined importance for the process and ability to enter an AoC promptly. 

A kind of Coase Theorem suggests that smaller parties will prefer to come together among peers before entering the AoC's, in order to reduce transaction costs; so there is the risk of asymmetric negotiating power, in consequence., so that companies would rather be represented by consortia or trade associations and countries by regional intergovernmental organizations. The overhead to maintain the set of AoC's may engender a new layer of bureaucracy. Finding entities willing to sign may be of highly varying degrees of difficulty (in other words, a hard sell.) 

All of these factors can be prgmatically designed and explored, and even tested. 

If the ALAC got itself to agree - with the community - that this is a desirable way to go forward, a well-prepared design, with a solid risk analysis, would be the best way to start to convince others. 

And as others have said very well, there may be no appetite for further fiddling with organizational stuff for a long time till the IANA Transition is completed. That is also a testable proposition.

Alejandro Pisanty

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________________________________________
Desde: at-large-bounces at atlarge-lists.icann.org [at-large-bounces at atlarge-lists.icann.org] en nombre de Subrenat, Jean-Jacques [jjs at dyalog.net]
Enviado el: domingo, 10 de abril de 2016 12:19
Hasta: parminder
CC: At-Large Worldwide
Asunto: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?

Having read, or re-read, the 67 messages which make up this thread so far, I would like to offer a few remarks and make a suggestion.

REMARKS:

- Throughout this thread, some terms have been used loosely, e.g. "international", "international organization", "treaty organization", etc. Current international law requires that we respect the definition of each of these terms. In particular, "international organization" refers to a body set up by a treaty to which member states are parties, and which their respective parliaments have ratified. In this sense, ICANN is not an international organization, although its work may have global effects. It should be clear that the membership of a Treaty Organization is limited to sovereign states, or multilateral bodies themselves set up by those sovereign states (e.g. the European Union). Therefore, if ICANN were to be transformed into an "international organization", it would be governed by the collective will of its members, i.e. sovereign states. This governing power would/could not be shared with any other category of membership.

- The claim, made at the beginning of this whole thread, that ICANN should and could come under some "international jurisdiction" might seem interesting, but cannot overcome the fact that, in the current acceptance of international law, there is no intermediate status between that of a Treaty Organization on the one hand, and on the other hand an entity which, in spite of its worldwide significance, does not have international status as granted by sovereign states.

- Like any other human construct, international law has evolved over time: at this stage, only sovereign states have the power to create, modify or terminate an international organization. The reasons invoked so far on this thread for giving ICANN a different legal status include: reinforcing the public interest component, strengthening accountability, heeding the needs of the global Internet user community, reinforcing the international nature and perspective of ICANN.

- The status of International Organization may not be available for ICANN: in addition, many within our communities have argued that it is also not desirable. This was largely debated in the CWG and in the CCWG. As for the Proposal sent by the ICG to the NTIA on 10 March 2016, it was bound by the criteria set out by the NTIA, including that the proposed transfer of oversight of the IANA Functions would not be exercised by any government, group of governments, or Treaty Organization.

SUGGESTION:

- ICANN and the United States of America entered into an agreement, first the Joint Project Agreement (JPA) and later the Affirmation of Commitments (AoC), by which both parties undertook to respect a series of principles and procedures.

- The mechanism set up for the AoC could be widened to all parties interested in an improved ICANN. An International Affirmation of Commitments (IAC) could be drafted by the ICANN Board and opened to a range of signatories: sovereign states, enterprises, NGOs, associations, international organizations (e.g. the European Union, the Association of American States, UNESCO, etc.).

- I first aired this idea when serving on the ICANN Board (2007-10). Things were not ripe then. Are they now?

Best regards,
Jean-Jacques.

----- Mail original -----
De: "parminder" <parminder at itforchange.net>
À: "Olivier MJ Crepin-Leblond" <ocl at gih.com>
Cc: "At-Large Worldwide" <at-large at atlarge-lists.icann.org>
Envoyé: Dimanche 10 Avril 2016 11:11:04
Objet: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?

Olivier

You are running in circles around the main case that I am presenting but *not* addressing it in the exact form I present it, which, I repeat, is as follows...

*Rojoadirecta takes a closed gTLD only for its own business, and so there is no other agency that loses anything in closing down of .rojadirecta, only rojadirecta loses which is supposed to be the intention of the court order.*

I am putting the above under emphasis so that you get it and get nothing else, and try to respond only to this situation - which is an important representative one.

The situation being, we move a few years back, enforcement agencies have the same problem with rojadirecta that they had a few years back, but this time verisign as controller of .com is unable to be of any help, bec .rojadirecta is a gtld and its own registry... Only ICANN can remove .rojadirecta, and it can do so without doing any damage at all to anything or anyone else, other than rojadirecta, which is the very intention of the enforcement action (of a court or another US agency)

I can clearly see that the order, court or otherwise, but especially of a court, will in such a situation go now to ICANN - bec for a US court/agency ICANN is not in any way different from verisign - and that ICANN MUST comply with the order, on the pain of further coercive action.

Do you or anyone else have a case that no, this wont happen.... If so, please be explicit, and justify your reasoning. That will be the right response to what I am arguing.

But I see from your email below that you are inclined to say that if rojadirecta is indeed afraid of being on the wrong side of US law, now or any time in future, in doing a business that has nothing directly to do with the US, it should simply not take a gTLD.... I just want to hear it again, is this what you are saying....

If so, it is both surprising and very disappointing that a leader of ALAC, the supposed civil society space working with ICANN, is saying such a thing.... That a central domain name service can/ should be denied to non US entities, unless they are ready to act as per US law and fully so, even if they are acting entirely outside of the US..... Is this justice and fairness? How are people here in ALAC opening advocating it?

How can we allow DNS to become a tool of making all of the world subject to US laws, in all areas of social activity, bec a gTLD can be in any area of social activity, governance, health, education, anything and everything..... Anyone aspiring to a gLTD in any of these social areas must make sure that it, now and for ever, observe US law, even if it plans never to have anything to do with the US..... Are we here at ALAC really advocating, or by default, working towards such a world?

parminder

On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote:

Dear Parminder,

let me try and help here too:

On 09/04/2016 07:01, parminder wrote:

US courts are not a subject of ICANN, it is the other way around....
So courts are not going to observe the intricate niceties of ICANN's
internal lingo..... gTLDs are directly controlled by ICANN, it can
include and remove one from the operative list of gTLDs.... There is
no other way to remove a gTLD... That alone counts, and the court will
direct ICANN accordingly.... Just forget the ICANN jargon. Please
respond to substantive points and issues. So what you are saying is that ICANN has sole ability to add or remove
TLDs from the Root, so US courts could ask ICANN to remove TLDs from the
Root. But Parminder, we are always talking about 2nd level - ie. the
names *under* the top level domain. What you are effectively saying is
that a request could be made by a US court to remove a top level domain
from the Root --- WHY? This is throwing the baby out with the bathwater.
This is like asking for the Indian Top Level Domain .IN to be removed
from the root because a sub-domain under .IN is used for criminal
activity. What I mentioned in my previous message is that there is
jurisprudence already in the US for this, so this kind of request has
very little chance of ever succeeding.

You havent responded to my substantive points, and are taking the
cover of a jargon about which I care as little as a US court will..
The substantive point it; is to proceed from an existing case,
rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's
case .wikipedia), and the same case had come to the same US court,
where would its order to take down the web presence of the respective
businesses be directed?  Would you care to respond to this point? Thanks. So here again, you are speaking about Top Level Domains. If I understand
you correctly, you take the example of Rojadirecta having applied
successfully for top level domain Rojadirecta - and what you are saying
is that there could be a request through a US court for this top level
domain to be removed from the Root. Using your words, that would "take
down the web presence of the respective businesses" -- all of the domain
names under .rojadirecta would be affected. Well, you're right. Perhaps
that's why Rojadirecta prefers operating under a variety of top level
domains that are not run by a US Registry rather than running its own
Top Level Domain.

Kindest regards,

Olivier

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