June 2016 - Accountability-Cross-Community

Root Zone Management Transition Update: Preservation of Security, Stability and Resiliency
by Grace Abuhamad June 28, 2016

June 28, 2016

Original link: https://www.icann.org/news/blog/root-zone-management-transition-update-pres… Root Zone Management Transition Update: Preservation of Security, Stability and Resiliency On March 4, 2015, the U.S. National Telecommunications and Information Administration (NTIA) officially requested that ICANN and Verisign work together to develop a proposal on how best to transition theNTIA administrative role associated with root zone management in a manner that maintains the security and stability of the Internet’s domain name system. NTIA previously announced that the transition of this aspect of its administrative role was a process separate from but parallel to the IANA stewardship transition. Verisign and ICANN submitted a proposal to NTIA that contained two primary elements. First, the teams would build and test a parallel root zone management system that would simulate root zone management functions without NTIA’s current authorization role. That system is now approaching the completion of its 90-day defect free testing phase. Second, in anticipation of the release of Verisign from root zone management obligations by NTIA under the Cooperative Agreement, the teams began work on a commercial agreement between ICANN and Verisign for the continued performance of root zone management functions. We are pleased to announce that ICANN and Verisign have completed the discussions and negotiations for the root zone maintainer services agreement (RZMA). Since the early days of the Internet, Verisign has been providing “registration services” under its Cooperative Agreement with NTIA, which was broadly defined to include root zone management functions and Top Level Domain registry services. NTIA recognized that root zone management aspects of the IANA functions contract are “inextricably intertwined” with the Cooperative Agreement. Given the unified nature of the present Cooperative Agreement, much of the root zone infrastructure itself is “inextricably intertwined” with Verisign’s TLD operations for .com: the servers that provide root services are hosted at every .com resolution site (over 100 locations). These servers share bandwidth, routing and monitoring with the .com operations, and the servers use the same code base as the .com TLDname servers and are operated and maintained by the same operation and engineering group. On the provisioning side, the root zone’s provisioning system is derived from the .com Shared Registration System (SRS), using the structure, schema, and software used for .com provisioning operations. Verisign builds and signs the root zone today using the same cryptographic facilities used for .com as well as signing software derived from that used for signing .com. Importantly, Verisign’s root zone operations are also within the .com’s Denial of Service attack detection and mitigation framework including independent internal and external monitoring and packet filtering at all layers. A key component of ensuring security of the root operations was making sure that those operations continued to benefit from its historic association with the .com operations. The RZMA is intended to maintain stable, secure, and reliable operations of the root zone not only for direct root zone management service customers (Registry Operators, Registrars and Root Server Operators), but also to maintain the security and stability of the Internet’s domain name system. This was achieved by a simple extension of the .com Registry Agreement to coincide with the term of the new RZMA. Regarding the RZMA, some of the key features include: · Requiring Verisign and ICANN to work together in good faith to preserve the security, stability and resiliency of the root zone and root zone management system consistent with the security and stability of the Internet. · Detailing ICANN’s responsibility to authenticate, verify, and submit to Verisign changes to the service data comprised in the Root Zone File. · Establishing service level requirements for Verisign to process, edit, generate and publish the Root Zone File, including an accelerated path to update the service data in the Root Zone File in cases of emergency. · Describing ICANN and Verisign’s key-signing obligations, which are to be performed in a secure, transparent and accountable manner. · Providing that the integrity of the service data of the Root Zone File and the Verisign systems performing the root zone maintainer function will be operated under a business continuity plan with the same product support level as maintained by the .com DNS resolution service and .com SRS, respectively. · Setting forth that Verisign will participate as a member of the future Root Zone Evolution Review Committee. · Providing for continuity of the security and stability of the root zone through a one-year transition process which may be initiated by a community driven process under which Verisign continues to perform the root zone maintainer function while ICANN implements a public RFP process to identify and onboard a new provider. · Setting out the development of an emergency transition process for extraordinary events. · Requiring ICANN and Verisign to meet quarterly to prioritize potential changes and updates to the services, including service levels and to prioritize a roadmap for implementation of such changes that may be effected through a built in change control process. What’s left to be done? Soon, we will post the RZMA for public review and the .com registry agreement amendment for public comment, after which our respective boards of directors will be asked to approve the agreements. The .com extension will be sent to NTIA for review and approval according to their processes. -- Grace Abuhamad Manager, Public Policy ICANN | Internet Corporation for Assigned Names and Numbers 801 17th Street NW, Suite 400 | Washington, DC 20006 Direct: +1 202 249 7545 | Mobile: +1 310 200 7638 Interested in the IANA Stewardship Transition? LEARN MORE<https://www.icann.org/stewardship-accountability>. STAY UPDATED<https://www.icann.org/stewardship-accountability#status>. FOLLOW<https://twitter.com/icann>. ENGAGE<https://www.icann.org/stewardship-accountability#involved>.

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TR: Request to the Chairs of Chartering Organizations for Validation of CCWG-Accountability Budget
by Mathieu Weill June 28, 2016

June 28, 2016

Dear Colleagues, Please join me in welcoming our new member from the ASO, Michael Abejuela. Best, Mathieu De : Oscar A. Robles-Garay [mailto:oscar@lacnic.net] Envoyé : lundi 27 juin 2016 23:01 À : Mathieu Weill Cc : thomas.schneider(a)bakom.admin.ch; Bernard Turcotte; Thomas Rickert; León Felipe Sánchez Ambía; ACCT-Staff; Xavier J. Calvez; Michael Abejuela; louie(a)louie.net Objet : Re: Request to the Chairs of Chartering Organizations for Validation of CCWG-Accountability Budget Dear Mathieu, Leon, Thomas, The NRO/ASO decided to appoint Michael Abejuela in its fifth seat on the CCWG WS2. Thus, Michael completes the list of NRO/ASO representatives as follows: Athina Fragkouli Fiona Asonga Izumi Okutani Jorge Villa Michael Abejuela I kindly request to help Michael to join the relevant CCWG ML at your earliest convenience. Saludos, Oscar On 23/06/2016, at 9:42, Mathieu Weill <mathieu.weill(a)afnic.fr> wrote: Chairs of the CCWG-Accountability Chartering Organizations, As per it's Charter the Project Cost Support Team (PCST) has supported the CCWG-Accountability in developing a draft budget for its activities for FY17 and has also developed a historical analysis of all the transition costs to date (please see the charter of the PCST in the attached document). The CCWG-Accountability FY17 budget was presented at its plenary meeting of June 21st and approved for transmission to the Chartering Organizations for validation as per the process agreed with the PCST (see attached document). Upon validation by the Chartering Organizations these should forward it to the Board for Approval. Please do not hesitate to contact us or the PCST should you have any questions on the attached document. Mathieu Weill, Thomas Rickert, Leon Sanchez CCWG-Accountability Co-Chairs <PCST Status on FY17 CCWG budget - 20Jun16 v1.1BT.PDF>

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CCWG Expressions of Interest WS2 Rapporteurs
by Karen Mulberry June 28, 2016

June 28, 2016

Sent on behalf of the CCWG Co-Chairs, Expression of Interest for Rapporteur of a WS2 subgroup Should you have an interest in becoming a Rapporteur of a WS2 subgroup, you need to indicate your interest by 3 July 2016. The names of those who have indicated interest in being a Rapporteur are highlighted in yellow in the Expression of Interest sign up list found at https://docs.google.com/document/d/1Iw5yn9GRk8RcnTJzclwB-JuSe3B6JugEj_0oGOCs eqU/edit <https://docs.google.com/document/d/1Iw5yn9GRk8RcnTJzclwB-JuSe3B6JugEj_0oGOC seqU/edit> As of yesterday we have the following names indicating interest in serving as a Rapporteur. Please note that there are still subgroups needing a Rapporteur. Diversity Fiona Asonga Human Rights Niels ten Oever Nigel Roberts Jurisdiction Paul McGrady SO/AC Accountability Cheryl Langdon-Orr Transparency Avri Doria Ombudsman Staff Accountability Reviewing the Cooperative Engagement Process (CEP) Guidelines on Good Faith Conduct in Participating in Board Removal Discussions Sincerely, The CCWG-Accountability Co-chairs Mathieu, Thomas and Leon

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Re: [CCWG-ACCT] CCWG Expressions of Interest WS2 Rapporteurs
by Sébastien Bachollet June 28, 2016

June 28, 2016

Hello all, If needed I am ready to be rapporteur for the Ombudsman. All the best Skills are useful but diversity is essential. Sébastien Bachollet +33 6 07 66 89 33 Blog: http://sebastien.bachollet.fr/ Mail: Sébastien Bachollet <sebastien(a)bachollet.com> De : <accountability-cross-community-bounces(a)icann.org> on behalf of Karen Mulberry <karen.mulberry(a)icann.org> Date : mardi 28 juin 2016 09:39 À : CCWG accountability <accountability-cross-community(a)icann.org> Cc : ACCT-Staff <acct-staff(a)icann.org> Objet : [CCWG-ACCT] CCWG Expressions of Interest WS2 Rapporteurs > Sent on behalf of the CCWG Co-Chairs, > > Expression of Interest for Rapporteur of a WS2 subgroup > > Should you have an interest in becoming a Rapporteur of a WS2 subgroup, you > need to indicate your interest by 3 July 2016. > > The names of those who have indicated interest in being a Rapporteur are > highlighted in yellow in the Expression of Interest sign up list found at > https://docs.google.com/document/d/1Iw5yn9GRk8RcnTJzclwB-JuSe3B6JugEj_0oGOC… > U/edit > <https://docs.google.com/document/d/1Iw5yn9GRk8RcnTJzclwB-JuSe3B6JugEj_0oGOC… > qU/edit> > > As of yesterday we have the following names indicating interest in serving as > a Rapporteur. > > Please note that there are still subgroups needing a Rapporteur. > > Diversity > Fiona Asonga > > Human Rights > Niels ten Oever > Nigel Roberts > > Jurisdiction > Paul McGrady > > SO/AC Accountability > Cheryl Langdon-Orr > > Transparency > Avri Doria > > > Ombudsman > > Staff Accountability > > Reviewing the Cooperative Engagement Process (CEP) > > Guidelines on Good Faith Conduct in Participating in Board Removal Discussions > > Sincerely, > > The CCWG-Accountability Co-chairs Mathieu, Thomas and Leon > > > _______________________________________________ Accountability-Cross-Community > mailing list Accountability-Cross-Community(a)icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Expression of Interest for Work Stream 2 Topics
by Edward Morris June 28, 2016

June 28, 2016

Chairs and colleagues, To the extent it would be helpful, I am happy to volunteer to be rapporteur, solely or jointly, in whole or in part, for any of the WS2 topics in which I have an interest and have been active in during earlier portions of this CCWG: transparency, ombudsman, CEP. Kind Regards, Ed Morris

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Re: [CCWG-ACCT] Expression of Interest for Work Stream 2 Topics
by Grace Abuhamad June 28, 2016

June 28, 2016

With apologies, here attached is the correct document. The content is the same in both documents, but the latest version (attached) is better formatted. From: <accountability-cross-community-bounces(a)icann.org> on behalf of Grace Abuhamad <grace.abuhamad(a)icann.org> Date: Monday, June 6, 2016 at 12:12 PM To: Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: [CCWG-ACCT] Expression of Interest for Work Stream 2 Topics Dear all, As we prepare for Helsinki and the Work Stream 2 kickoff, we have put together an Expression of Interest document for you to fill out and help us with organizing the work ahead. A PDF version of the document is attached, but we ask that, if possible, you fill this document out live at: https://docs.google.com/document/d/1Iw5yn9GRk8RcnTJzclwB-JuSe3B6JugEj_0oGOC…. The purpose of this document is to get a sense of the level of engagement and expectations around different Work Stream 2 topics. We can use the information from the document to help us plan and sequence our work. Please share this document with any interested parties. We have purposely included the “email address” column so that we can reach out to any new names we see signing up in the document. If you are already on the CCWG-ACCT list (i.e. if you are receiving this email) then there is no need to fill out the “email address” column. If you have any questions, please reach out to acct-staff(a)icann.org. We will keep this document open until our kick-off meeting in Helsinki, unless the Chairs determine that the document needs to be closed sooner. Best, Grace -- Grace Abuhamad Manager, Public Policy ICANN | Internet Corporation for Assigned Names and Numbers 801 17th Street NW, Suite 400 | Washington, DC 20006 Direct: +1 202 249 7545 | Mobile: +1 310 200 7638 Interested in the IANA Stewardship Transition? LEARN MORE. STAY UPDATED. FOLLOW. ENGAGE.

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Re: [CCWG-ACCT] volunteering for coordinating human rights work
by tijani.benjemaa＠topnet.tn June 27, 2016

June 27, 2016

I do support Niels’ EoI. If there will be 2 co-chairs, I volunteer to be the second co-chair. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

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FW: Grassley, Goodlatte: Too Many Unanswered Questions in Plan to Transfer of Internet Authority
by Paul Rosenzweig June 27, 2016

June 27, 2016

All Below is FYI. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ Senate and House Judiciary Committee Chairmen cast heavy doubt on Internet Giveaway plan. For Immediate Release Monday, June 27, 2016 Grassley, Goodlatte: Too Many Unanswered Questions in Plan to Transfer of Internet Authority WASHINGTON – Senate Judiciary Committee Chairman Chuck Grassley and House Judiciary Committee Chairman Bob Goodlatte today raised concerns about Obama Administration efforts to relinquish stewardship of key internet functions in light of unanswered legal, constitutional and human rights questions. Other concerns include whether such a transition would jeopardize free expression on the Internet or weaken certain intellectual property protections. In a letter to the National Telecommunications and Information Administration, the chairmen caution that the transition may violate the Constitution if it transfers government property to a private entity without congressional approval. The chairmen have <http://www.grassley.senate.gov/news/news-releases/lawmakers-relinquishing-o…> sought clarification on whether the root zone file and similar components, which were created and financed by the U.S. government, constitute government property. They advise that transferring these components without congressional approval raises constitutional issues and the prospect of illegality. “Despite NTIA’s intention of ending the United States government role, a number of important issues and concerns exist that indicate that this course is misguided or, at the very least, premature,” the chairmen said in the letter. “As we have stated previously, it is unfortunate that this proposal to eliminate the United States historical stewardship role over key internet management functions has been undertaken not because of technical considerations but for political ones.” They raised concerns about a potential weakening of free expression and human rights protections by leaving terms such as “human rights” undefined and by increasing the authority of foreign governments, some of which have demonstrated a lack of commitment to human rights and an open internet. The chairmen also called into question the legality of the government’s continued work to pursue the transition, given provisions in recent government funding laws that prohibit taxpayer dollars from being used in furtherance of the transition, including proposal review and assessment. The chairmen ask NTIA to respond to the questions raised in their letter and reiterate their commitment to ongoing oversight and examination of a potential transition of the internet authority. Full text of the letter <http://www.grassley.senate.gov/sites/default/files/judiciary/upload/2016-06…> follows: June 27, 2016 The Honorable Lawrence Strickling Assistant Secretary for Communications and Information National Telecommunications and Information Administration United States Department of Commerce 1401 Constitution Avenue, N.W. Washington, DC 20230 Dear Assistant Secretary Strickling: The Internet Corporation for Assigned Names and Numbers (ICANN) recently submitted a proposal to the National Telecommunications and Information Administration (NTIA) regarding the proposed transfer of key Internet domain name functions to the global multi-stakeholder community. On June 9, 2016, NTIA released a report concluding that this proposal meets the criteria set by NTIA when it announced its intention to transition these functions, known as the Internet Assigned Number Authority (IANA) functions. We are writing to express concerns regarding this proposal and NTIA’s conclusions. As we have stated previously, it is unfortunate that this proposal to eliminate the United States historical stewardship role over key Internet management functions has been undertaken not because of technical considerations but for political ones. When announcing this proposed transition in March, 2014, NTIA specified that such a proposal must have broad community support, maintain the security, stability, and resiliency of the Internet Domain Name System (DNS), meet the needs of the multi-stakeholder community and enhance the multi-stakeholder model, and maintain the openness of the Internet. Importantly, NTIA stated that it would “not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.”[1] Further, ICANN and NTIA have repeatedly stated that it is more important to get this right than it is to get it done by an artificial or political deadline. Despite NTIA’s intention of ending the United States government role, a number of important issues and concerns exist that indicate that this course is misguided or, at the very least premature. These include whether or not the administration has the constitutional authority to conduct this transfer without the authorization of Congress because of the United States property interest in the root zone file – or any other similar component of the Internet that was created and financed by the United States. This concern was raised in 2000 by the Government Accountability Office (“GAO”), which questioned whether NTIA could relinquish authority over the root zone file. GAO concluded that it was “unclear whether such a transition would involve a transfer of government property to a private entity.”[2] To date this question has not been answered with any certainty and we filed a request with the GAO seeking clarity to this question. As of yet we have not received an answer and the question of the United States property interest remains outstanding. Consequently we remain concerned that NTIA’s planned transition of the IANA functions may potentially relinquish ownership of United States property. It does not make sense to proceed without definitive answers to this question and doing so may possibly violate the Constitution. In their rush to meet artificial, politically imposed deadlines, the multi-stakeholder working groups have failed to address important issues regarding freedom of speech and human rights. The Cross Community Working Group – Accountability (CCWG) proposal recommends that the ICANN bylaws incorporate a commitment to internationally recognized human rights, yet what this term actually means remains undefined and open-ended. This could lead to the adoption of definitions of free speech that run counter to American values and jurisprudence, in opposition to a free and open Internet. Further, leaving these terms undefined has raised fears that foreign governments could use this ambiguity to use ICANN as a tool to moderate content. The CCWG has deferred resolution of these important considerations until a later date. Without resolution of these issues, the multi-stakeholder community and policymakers cannot in good faith vote to eliminate the United States’ role as a necessary and responsible backstop against threats to openness and free speech on the Internet. Recognizing the harmful impact of potential capture by foreign governments, NTIA explicitly stated that any proposal would not replace the status quo with a governmental or inter-governmental model. However, under the current proposal, the power of foreign governments would be significantly increased via the Governmental Advisory Committee (GAC) as the threshold for the ICANN board to reject GAC advice increases from 50 to 60 percent. Further, foreign governments, via the GAC, will continue to be able to exert special power to convey advice to the board directly for a mandatory vote, unlike other advisory bodies. Additionally, despite the Fiscal Year 2016 Omnibus spending bill’s prohibition on NTIA using any funds in furtherance of the transition, NTIA has been working to transfer the IANA functions by devoting staff time and commissioning outside studies on the subject. Specifically Section 539 of the FY2016 Omnibus states that funds provided in the Act may not be used to relinquish NTIA’s responsibility for the Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the IANA functions. However, in NTIA’s recent “IANA Stewardship Transition Proposal Assessment Report,”[3] NTIA states that, among other actions, it “utilized a number of resources and tools” to review and assess the IANA stewardship proposal. Further NTIA states that it utilized the DNS Interagency Working Group, comprised of 15 government agencies, to “engage U.S. federal government agencies on matters related to the IANA Stewardship Transition, including proposal review and assessment.” As we are sure you are aware, it is a violation of federal law for an officer or employee of the United States Government “to make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.”[4] It is troubling that NTIA appears to have taken these actions in violation of this prohibition. Finally, as you know, there exist Public Interest Commitments (PICs) in ICANN’s contracts with new gTLD registries that specifically obligate new generic Top-Level Domain (gTLD) registries (and by extension) registrars to mitigate DNS abuse by Registered Name Holders, including “piracy, trademark or copyright infringement.”[5] While the revised bylaws make it clear that the PICs and the registry contracts that contain them are deemed within ICANN’s mission and not subject to a facial ultra vires challenge,[6] we remain concerned that ICANN’s Board, especially in light of comments made earlier this year, is not fully committed to enforcing the PICs. How will they enforce them? The openness, security, stability the resiliency of the Internet are of paramount importance to all Internet users. The significance of NTIA’s proposed action demands that answers to these concerns and questions be resolved. As many aspects of this proposal lack legal clarity or organizational stability, our Committees are committed to ongoing oversight and examination of these issues as discussions of a potential transfer continue. Any discussion of a transfer of the IANA functions without answers to the following questions remains premature. * As noted above, the CCWG has deferred resolution on important free speech and human rights issues until a later date, potentially after a transition were to occur. How can NTIA ensure that future actions by ICANN do not bring about potentially harmful changes that would limit free speech or human rights once the United States no longer maintains the IANA functions contract? What recourse would NTIA have should this situation occur? * Under the current proposal, the threshold for the ICANN board to reject GAC advice increases from 50 to 60 percent and foreign governments, via the GAC, will continue to be able to exert special power to convey advice to the board directly for a mandatory vote. Many observers are wary that this transition could lead to foreign, totalitarian governments making demands on ICANN that would limit an open and free Internet, harming free speech and human rights across the globe. Others have raised concerns that this could be the first step in an eventual move to transfer control of the Internet to a non-governmental organization such as the International Telecommunications Union (ITU). What contingency plans has NTIA put into place to deal with these possibilities? Please share with us such detailed contingency plans that would ensure continued freedom of the Internet. * The transfer of government property without Congressional approval raises Constitutional issues and the prospect of illegality. The Government Accountability Office is currently conducting a study to determine the United States Government’s property interest in the root zone file – or any other similar component of the Internet that was created and financed by the United States. The Department of Justice’s Office of Legal Counsel (OLC) provides authoritative legal advice to the President and all Executive Branch agencies. Has NTIA requested OLC to analyze this issue concurrently with the GAO? If not, why? * Without the proper analysis regarding the United States Government property interest, it is premature to conduct any transition. Will NTIA commit to postpone any transition in the absence of a determination by GAO and OLC relating to this property issue? * Did NTIA inform other members of the DNS Interagency Working group of the transition related appropriations provision in the FY2106 Omnibus spending bill? * Why did NTIA proceed in utilizing funds in furtherance of the transition in light of the clear prohibition created by the FY2016 Omnibus spending bill? * ICANN’s revised bylaws make it clear that the Public Interest Commitments and the registry contracts that contain them are deemed within ICANN’s mission and not subject to a facial ultra vires challenge.[7] However, some members of the multi-stakeholder community have expressed concern that the ICANN Board may not believe that mitigating certain types of DNS abuse, such as IP infringement, is within ICANN’s mandate. How will this proposal require ICANN’s commitment to maintaining and enforcing the Public Interest Commitments, now and in the future? * Is NTIA opposed to Congress requiring an affirmative, up-or-down vote for the IANA functions transition to be completed? Why or why not? Please provide answers to the above questions by July 22, 2016. Contact Jonathan Nabavi (Chairman Grassley) or Vishal Amin (Chairman Goodlatte) on our staffs if there are any questions regarding this request. We appreciate your timely reply. Sincerely, Charles E. Grassley Chairman Senate Committee on the Judiciary Bob Goodlatte Chairman House Committee on the Judiciary -30- _____ _____ [1] https://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transitio… [2]U.S. Government Accountability Office., GAO-B-284206, Department of Commerce: Relationship with the Internet Corporation for Assigned Names and Numbers (2000) [3] https://www.ntia.doc.gov/files/ntia/publications/iana_stewardship_transitio… [4] 31 U.S.C. § 1341. [5] https://newgtlds.icann.org/sites/default/files/agreements/agreement-approve… (See Specification 11). [6] https://www.icann.org/en/system/files/files/proposed-new-bylaws-20apr16-en.… (See Section 1.1(d)) [7] https://www.icann.org/en/system/files/files/proposed-new-bylaws-20apr16-en.… (See Section 1.1(d))

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volunteering for coordinating human rights work
by Niels ten Oever June 27, 2016

June 27, 2016

Dear co-chairs and colleagues, Hereby I would like to volunteer, as I indicated on the volunteer list, for chairing or co-chairing the human rights design team. All the best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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Responses on Draft Articles of Incorporation
by Samantha Eisner June 27, 2016

June 27, 2016

Dear CCWG Members and participants: During last week’s CCWG call, a few questions were raised on the Articles of Incorporation that are currently out for public comment, and written responses were requested to supplement the answers I provided on the call. Below please find some input. Best regards, Sam Article 1 - Future v. further laws Any reference in these Articles to the Code shall include the corresponding provisions of any furtherfuture United States tax code. Response: ICANN agrees with the modification to the word “future” as explained by Adler. This is a clarification that makes it clearer that the Articles will be considered in alignment with future changes to the Code. Article 2 - May v. Shall on global public interest Questions were raised about the phrase “may be determined” as it is used in this Article , the Corporation shall, except as limited by Article 54 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 (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv)., as such global public interest may be determined from time to time by the multistakeholder community through an inclusive bottom-up multistakeholder community process, by carrying out the mission set forth in the bylaws of the Corporation (“Bylaws”). Concerns were raised regarding the permissive use of the term “may” as opposed to the term “shall”, which would make this a requirement. As discussed on the CCWG call, this phrase is not used here to describe either a permissive consideration or mandatory requirement, but is instead drafted to convey that the global public interest that is determined by the multistakeholder community may change from time to time as needed. Response: Given that the language that is currently in the draft Restated articles may cause confusion, if the CCWG-Accountability wished to note this issue in a public comment, ICANN would support changing language to “as such global public interest is determined from time to time”. Article 3 – Applicable local law The CCWG-Accountability asked for further inputs on the modification of the language now at Article 3: The Corporation shall operate in a manner consistent with these Articles and its Bylaws for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and applicablelocal law and, to the extent appropriate and consistent with these Articles and its Bylaws, through open and transparent processes that enable competition and open entry in Internet-related markets. To this effect, the Corporation shall cooperate as appropriate with relevant international organizations. Response: As discussed with the CCWG, the movement of the term “applicable” to modify “local law” seems to be a more precise statement. To the extent that any international conventions are applicable to ICANN, they become so by virtue of applicable local law. As ICANN is not an IGO, it is not a party to nor are international conventions directly applicable to ICANN. Article 2 – Organized v. incorporated; Insert that ICANN is headquartered in California Brett Schaefer suggested "replacing “organized” with “incorporated” in the second sentence and adding an additional sentence affirming the current location of the headquarters of ICANN." Response: There is no legal difference between the term “organized” or “incorporated” in this instance. They both would demonstrate that ICANN is created pursuant to California law, and using either term, ICANN is bound to file its Articles of Incorporation in California and maintain an address and an agent for service of process in California. Though they mean the same thing, ICANN has – since 1998 – used the term “organized” within its Articles. The term “organized” is the more appropriate term to use for organizations of ICANN’s type, and is even the recommended term provided by the California Secretary of State in model forms for Nonprofit Public Benefit organizations like ICANN (See form ARTS-PB-501(c)(3): "It is organized under the Nonprofit Public Benefit Corporation Law”. Available at Bpd.cdn.sos.ca.gov/corp/pdf/articles/arts-pb.pdf) For those unfamiliar, the California Secretary of State is responsible for the filings and maintaining business records for California organizations. Adherence to the model usage of the language is recommended, and there does not seem to be a compelling justification to change from the historical and accepted usage. Further, there was nothing in the CCWG’s WS1 report that would dictate this change. Inserting a statement in the Articles of Incorporation that ICANN is headquartered in California is not supported by the WS1 report. There was substantial conversation within the CCWG during its deliberations that ICANN’s principal place of business should not be identified as a fundamental Bylaw, and only as a standard Bylaw. Therefore, not only is this an item that is not dictated by the WS1 report, but taking on this suggestion would appear to be contrary to the WS1 report. <http://bpd.cdn.sos.ca.gov/corp/pdf/articles/arts-pb.pdf><http://bpd.cdn.sos.ca.gov/corp/pdf/articles/arts-pb.pdf><http://bpd.cdn.sos.ca.gov/corp/pdf/articles/arts-pb.pdf> “old” Article 5 – Disqualified Persons There was a request to consider if the prohibition that used to be at Article 5 be reinstated into the Bylaws: In no event shall the Corporation be controlled directly or indirectly by one or more "disqualified persons" (as defined in § 4946 of the Code) other than foundation managers and other than one or more organizations described in paragraph (1) or (2) of § 509 (a) of the Code. There was a justification provided to the CCWG from Adler, noting that Adler recommended the removal of this section on the following basis: "There is no legal requirement under California corporate law or related to ICANN’s tax-exempt status that ICANN’s Articles include this prohibition, although it may be a matter of ICANN internal policy. However, we recommend deleting this prohibition now, since it is unclear why control by only disqualified persons versus a subset of 501(c)(3) nonprofits is addressed. Moreover, we are not aware that ICANN has any disqualified persons under IRC Section 4946 other than its foundation managers (directors, officers, and senior executive staff). (If this subsection is retained, the reference to the IRC section defining “disqualified persons” should be corrected. IRC Section 4946 applies to private foundations; the applicable definition for a public charity like ICANN is Section 4958.)" Response: ICANN does not have an objection in principle to the reinstatement of this provision subject to ICANN confirming what the appropriate code references would be and whether any further edits would be necessary to bring this section in line with the code section that is now applicable to ICANN as a public charity. ICANN did not originate this edit. If the CCWG believes that it is important for this provision to be reinstated, please document that in a public comment.

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