Eberhard,

The answer to your question re USG “claim” to the root is – as I’m sure you know – somewhat convoluted. Without jumping into the “what the IPC rep said and what the record reflects” controversy (about which I know nothing) here is my take on the situation.

The USG entered into a “cooperative agreement" with Network Solutions in 1993, under which Network Solutions operated the authoritative root, and also provided both registry and registrar services to TLDs other than ccTLDs. Until he died in 1998, Jon Postel was in charge of IANA functions through a contract between the University of Southern California Information Sciences Institute and DARPA. As far as I know, during that period, Jon delegated ccTLDs and Network Solutions added them to the root at Jon’s direction. We have no record of the terms and conditions under which these delegations occurred prior to 1994, when RFC 1591 was issued.

The Cooperative Agreement was somewhat ambiguous about “ownership” and “authority.” In 1993, when the Cooperative Agreement was signed, there were some 7500 registered domain names. https://www.nsf.gov/news/special_reports/cyber/internet.jsp. It is clear that the National Science Foundation had a right to a copy of the data base, but other rights were less clear. The situation was complicated by the fact that the IANA functions – so presumably the authority to modify the authoritative root – was performed by USC/ISI under a regular government procurement contract with DARPA. Did that mean DARPA had authority to control changes to the authoritative root? I don’t think anyone really knows. Maybe the answer lies in the Postel archives, which have not been made available by USC. And finally, it should be noted that throughout this period there were no formal agreements with the root server operators in the US and elsewhere (Japan, Sweden, UK as I recall). As a practical matter, it is the root server operators who determine which root is authoritative (as Jon once demonstrated). So, call the situation murky.

In 1997, the Cooperative Agreement was transferred from the National Science Foundation to the Department of Commerce, and beginning that summer, the DOC conducted several public consultations about the future of DNS governance. In 1998, the DOC announced that it was prepared to recognize a representative, private-sector organization to manage the DNS. While the global community undertook to develop an appropriate government, in September of 1998, the Cooperative Agreement between Network Solutions and the DOC was set to expire. As part of the extension of that agreement, Network Solutions (which may have become Verisign by that time) agreed that it would not make changes to the authoritative root without the consent of the DOC. That agreement was intended to preserve the stability of the DNS during the transition, and to prevent Network Solutions from undermining the transition (not saying that it intended to do so, just a safeguard). The amendment 11 provision formally inserted the USG into DNS governance issues, but it was not the first time. For example, in connection with some litigation regarding the addition of new TLDs – in 1997 or early 1998 – USC/ISI and Network Solutions asked the DOC whether a large group of names should be added at the behest of a particular private party, and the DOC instructed USC and NetSol that they should not be added, particularly in light of the consultations then underway.

Your question about whether or not the USG has a basis for its “claim” of authority over the root is a bit metaphysical. The USC clearly has the right to prevent Verisign from modifying the authoritative root. Whether or not it had the right before Amendment 11, Verisign gave the DOC that right by contract in that amendment. The USG’s authority to determine which root serves as the authoritative root and who operates that root is not spelled out in black and white anywhere that I know of – it is something that happened along the way, a byproduct of contract and the passage of time, and certainly not an inherently governmental function. To the extent there ever was “property” - e.g., in the form of USG funded root server hardware, for example, I am confident that such property is long past its useful life and no longer in service.

What we know for sure is that Verisign operates the authoritative root and the DOC has the contractual authority to tell Verisign not to make a change to the root. That right reflects a contractual agreement between two parties, and does not seem to me to be a delegation of authority over USG “property.” Accordingly, I think the USG has the right to transfer authority for changes to the root in the manner contemplated here. To be sure, this transfer was in fact contemplated expressly in Amendment 11, when the DOC and Verisign agreed that the USG had the right to direct Verisign to follow the directions of “Newco” (which subsequently became ICANN).

Of course, I’m sure you and I could come up with all kinds of interesting scenarios that would complicate this process.

J. Beckwith Burr

Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington, DC 20006

Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz

From: List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org>
Reply-To: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org>
Date: Saturday, April 25, 2015 at 6:11 AM
To: "ccwg-accountability5@icann.org" <ccwg-accountability5@icann.org>
Cc: Lisse Eberhard <directors@omadhina.NET>, Accountability Community <accountability-cross-community@icann.org>
Subject: [Acct-Legal] Objection (Re: [CCWG-ACCT] Nomcom as a UA - legal question)

I have about have it with the unappointed participant of a vested interest making decisions.

Never mind that he just is not entitled to make the ones at hand. Under the Charter or in any other way! Technically this triggers billable hours, so even formally it may not withstand an audit.

Yes, read it s objection, for the record.

I repeat my demand for the question whether the USG has in fact a base for its "claim" (for the lack of a better word) to the root, and the consequences thereof (if it does not, we have an idea what this means already, if does, may it transfer it (an asset (of sorts)) in the manner proposed, and how does all of this affect (cc)TLDs (when looking at this in chronological batches).

The absolute only reason I can see to ignore or avoid the question, is knowing or being concerned about the answer, but not having this done creates an accountability issue in itself.

I do note, by the way, at last reading of my email the deafening silence about the conflict between the IPC lobbyist's statement about what he alleged as to have said in the Legal SubTeam meeting of 2015-04-08 and the transcript of what he actually did say.

I have no issues with anyone representing anyone's interests and even as aggressively and flouting rules as Americans businesses are so admired for all over the world, by the way. If I had that kind of money I'd also get me one of these onto both CWG and CCWG and influence the outcome.

Whatever it takes...

el
--

Sent from Dr Lisse's iPad mini

On Apr 25, 2015, at 03:50, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> wrote:

Holly,

Yes, please proceed to answer the questions posed in Avri's email.

Thanks!

Greg

On Friday, April 24, 2015, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5@icann.org> wrote:

Thanks Greg. I take it that the Legal SubTeam would like us to add this to the list of questions we are answering. Holly

Sent with Good (www.good.com)

From: ccwg-accountability5-bounces@icann.org on behalf of List for the work of CCWG-Accountability Legal SubTeam
Sent: Friday, April 24, 2015 05:54:47 PM
To: Avri Doria; ccwg-accountability5@icann.org
Cc: accountability-cross-community@icann.org
Subject: Re: [Acct-Legal] [CCWG-ACCT] Nomcom as a UA - legal question

Avri,

I am forwarding your question to the Legal Sub Team list.

Greg

On Fri, Apr 24, 2015 at 6:51 PM, Avri Doria <avri@acm.org> wrote:

Hi,

I am confused as to how this works. Please forgive my questions. This has less to do with the proposal I made then with trying to understand the nature of a UA. I had not realized until yesterday that the membership model was as popular as it has been defined to be. I had also not realized that we were down to membership or designator model as our only choices until today.

What qualifies the Nomcom as an association? It can't be the people, as there is no continuity, except among the staff. and some overlap in chairs as last year's chair, this years' chair and next year's possible chair, sit togehter each year. I guess that is a bit of natural person continuity. Is that chair thread significant?

Or is that it is always formed according to same bylaw, even if all of the people are different, that is a qualifying mark? Is being a differnt instantiation of the same process sufficient to define a UA, even if there is no continuity of natural persons?

thanks

avrl

Note: I would have sent this to the legal list, but i never managed to get subscribed that one as far as I can tell.

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