As we discuss jurisdiction, I’m resending my email of March 5 for further context: From: Drazek, Keith Sent: Thursday, March 05, 2015 2:53 AM To: 'Tijani BEN JEMAA'; 'Phil Corwin'; 'Pedro Ivo Ferraz da Silva'; 'Steve DelBianco'; 'Accountability Cross Community' Cc: 'ACCT-Staff'; ccwg-accountability4@icann.org Subject: RE: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Hi Tijani, In light of Fadi’s statement during his February 25 Senate testimony (as quoted by Phil Corwin in another email), there may be a risk to a successful and timely IANA Transition if the AoC’s US jurisdiction language is NOT incorporated into the bylaws. Fadi’s statement that ICANN “stands by” the requirements in the AoC (and the US jurisdiction requirement in particular) and that he believes incorporating the obligations into the bylaws is a good idea has set an expectation. If that expectation is not addressed and met by the community proposal, it will be very difficult for NTIA to explain to Congress why it was omitted. This could be used by some to try to derail the transition that we all want to happen. Also, it’s important to note that Fadi’s statement was part of his prepared remarks, not an off-hand comment. In those prepared remarks, he referenced the July 2014 letter that was sent to Steve Crocker by Senators Thune and Rubio where they called for the AoC obligations to be made permanent. As such, Fadi went out of his way to assure the Senators that ICANN would remain subject to US jurisdiction and that he expected the AoC obligations to be incorporated into the bylaws, as they had requested. I hope this additional context helps. Regards, Keith From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Wednesday, March 04, 2015 6:25 PM To: 'Phil Corwin'; 'Pedro Ivo Ferraz da Silva'; 'Steve DelBianco'; 'Accountability Cross Community' Cc: 'ACCT-Staff'; ccwg-accountability4@icann.org<mailto:ccwg-accountability4@icann.org> Subject: Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Phil, I also was watching the senate hearing, and confirm that Fadi said that ICANN would remain subject to US jurisdiction. I also confirm that this is a very important point. It is important because the NTIA announcement of the stewardship transition calmed very much people who were always complaining that it is unfair that a single country control the Internet, a global network. Now that we have this achievement, it would be a pity to loose it because we want to put in our bylaws that ICANN will remain acting under the US jurisdiction. I know and agree that the US jurisdiction is one of the best for the not for profit corporation. I don’t say that we need to move ICANN to another jurisdiction, but I think we don’t have to make it a condition. We need a stable and predictable legal environment, and we also need to build trust and make people stop complaining. So being diplomatic in our work is really necessary for a successful and sustainable transition. -------------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: + 216 41 649 605 Mobile: + 216 98 330 114 Fax: + 216 70 853 376 -------------------------------------------------------------------------------- De : accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] De la part de Phil Corwin Envoyé : mercredi 4 mars 2015 23:29 À : Pedro Ivo Ferraz da Silva; 'Steve DelBianco'; Accountability Cross Community Cc : ACCT-Staff; ccwg-accountability4@icann.org<mailto:ccwg-accountability4@icann.org> Objet : Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Pedro: This is a very important point. I was in the room at the Senate Commerce hearing last week, and also at another event at the US Chamber of Commerce two days later. At both events Fadi stressed that ICANN would remain subject to US “jurisdiction" post-transition, not just maintain its nominal HQ in the US. As you correctly point out, there is a big “difference between "headquarter location" and "legal presence/legal jurisdiction". Choice of legal jurisdiction is a very important point for multiple reasons, among them: · Stable and predictable legal regime for contracted parties. As all of ICANN’s authority vis-à-vis registries and registrars is based on its contracts with them, reliable and predictable contract enforcement is a key consideration. The US is generally regarded as having one of the best legal systems in the world. · Design of both the IANA and ICANN accountability measures. Both the CWG and the CCWG are going to engage independent legal counsel to advise them on the design of accountability measures within the context of California public benefits corporation law. If the legal context changes those accountability measures may not fit properly within it; they may become less effective or even unworkable. · Security concerns. As a US corporation, ICANN is forbidden by OFAC regulations form engaging in any transactions with entities classified as criminal or terrorist. This consideration is particularly potent for the Administration and Congress. As to your point that “The community should be given the ability to decide, in the future, which jurisdiction better serves the purpose of ICANN acting in accordance to the global public interest.” , that is not necessarily foreclosed, at some future date, depending on what mechanisms are provided for Bylaws amendments. But for the immediate future those engaged in this transition exercise should have some idea whether ICANN’s continued legal existence as a non-profit California corporation is acceptable to other nations or whether it will become the new “irritant” (as described by Secretary Strickling) that replaces the IANA counterparty status as cause for complaint and basis for calls for further alterations in its structure and status. This is central to the issue of whether the transition we are designing will be stable for the foreseeable future or will just be a short-term transitional stage from which new initiatives for change are launched not long after the ink dries. Regards, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Pedro Ivo Ferraz da Silva Sent: Wednesday, March 04, 2015 4:55 PM To: 'Steve DelBianco'; Accountability Cross Community Cc: ACCT-Staff; ccwg-accountability4@icann.org<mailto:ccwg-accountability4@icann.org> Subject: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Dear Steve, Thank you very much for the update on the Stress Tests. With respect to ST #15, it is very valuable, but I think we should be very cautious about proposed measures. The following option makes sense and should be further debated: " If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision". However, we anticipate objections to the alternative solution below: "One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party." Paragraph 8 of the AoC requires US legal presence most probably due to the present scenario where the US government (i.e.NTIA) is the steward of the IANA functions. Once that link is no longer there, and especially because that stewardship is being inherited by the global multistakeholder community (stressing the word "global") a legal presence in the US (or in any other specific country) should not be etched in stone. The community should be given the ability to decide, in the future, which jurisdiction better serves the purpose of ICANN acting in accordance to the global public interest. During yesterday's call, some colleagues mentioned ICANN CEO's Testimony in the American Senate last week. What he stated was literally: " Further, ICANN has its global headquarters in the United States, and there are no plans for that to change". Although such a decision/affirmation may be debatable, it is important, once again, to stress the difference between "headquarter location" and "legal presence/legal jurisdiction". Under e.g. an international jurisdiction, an entity could potentially be headquartered anywhere. Regards, Sec. Pedro Ivo Ferraz da Silva Division of Information Society Ministry of External Relations - brazil T: + 55 61 2030-6609 -----Mensagem original----- De: ccwg-accountability4-bounces@icann.org<mailto:ccwg-accountability4-bounces@icann.org> [mailto:ccwg-accountability4-bounces@icann.org] Em nome de Steve DelBianco Enviada em: segunda-feira, 2 de março de 2015 23:36 Para: Accountability Cross Community Cc: ACCT-Staff; ccwg-accountability4@icann.org<mailto:ccwg-accountability4@icann.org> Assunto: [ST-WP] [CCWG-ACCT] Additional Stress Tests to discuss For tomorrow’s call, we applied 4 more of our stress tests against the draft package of proposed accountability measures. Stress Tests #1 and 2 (together), #24, and #15, are shown below and in the attached draft document. Stress Test: #1. Change authority for the IANA Root Zone ceases to function, in part or in whole. #2. Delegation authority for the IANA Root Zone ceases to function, in part or in whole. Consequence: interference with existing policy relating to IANA Root Zone and/or prejudice to the security and stability of one or several TLDs. Existing Accountability Measures: Under the present IANA contract, NTIA can revoke ICANN’s authority to perform IANA functions and re-assign to different entity/entities. After NTIA relinquishes the IANA contract, this measure will no longer be available. Proposed Accountability Measures: The CWG planning the IANA stewardship transition might design mechanisms and structures that enable separation, such that the IANA functions could be readily revoked and re-assigned. To manage the revocation of IANA functions, the CWG might also propose an emergency backup provider and procedures, pending re-assignment of the IANA functions. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. At this point, CWG’s recommendations are still in development. ——————————————————— Stress Test: #24. An incoming Chief Executive institutes a “strategic review” that arrives at a new, extended mission for ICANN. The Board, having just hired the new CEO, approves the new mission and strategy without community consensus. Consequence: Community ceases to see ICANN as the community’s own mechanism for discharging limited technical functions, and views ICANN as an independent, sui generis entity with its own agenda, not necessarily supported by the community. Ultimately, community questions why ICANN’s original functions should remain controlled by a body that has acquired a much broader and less widely supported mission. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to expand scope too broadly. The Community has some input in ICANN budgeting and Strat Plan, and could register objections to plans and spending on extending ICANN’s mission. California’s Attorney General has jurisdiction over non-profit entities acting outside Bylaws or Articles of Incorporation. Proposed Accountability Measures: One proposed measure is empowering the community to veto ICANN’s proposed annual budget. This measure could block a proposal by ICANN to increase its expenditure on extending its mission beyond what the community supported. If the ICANN board voted to approve the CEO’s plans, one proposed measure would give the community standing to veto a board decision. Another proposed measure is empowering the community to challenge a board decision, referring it to an Independent Review Panel (IRP) with the power to issue a binding decision. [What would be the standard used for this review?] Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures in combination are adequate. ——————————————————— Stress Test: #15. ICANN terminates its legal presence in a nation where Internet users or domain registrants are seeking legal remedies for ICANN’s failure to enforce contracts, or other actions. Consequence: affected parties could be prevented from seeking legal redress for commissions or omissions by ICANN. Existing Accountability Measures: As long as NTIA controls the IANA contract, ICANN could risk losing IANA functions if it were to move in order to avoid legal jurisdiction. Paragraph 8 of the AoC requires ICANN to remain headquartered in the US, but the AoC can be terminated by ICANN at any time. As long as NTIA controls the IANA contract, ICANN feels pressure to maintain the AoC. Proposed Accountability Measures: One proposed measure is to give the community standing to veto a board decision. If ICANN board voted to vacate a legal presence, the community veto could enable reversal of that decision. One proposed measure is to import AoC provisions into the ICANN bylaws, and dispense with the bilateral AoC with NTIA. Bylaws would be amended to include AoC commitments 8, requiring it to maintain legal presence in the US, where it is subject to legal redress by any aggrieved party. If ICANN’s board proposed to amend the AoC provisions added to the bylaws, another proposed measure would empower the community to veto that proposed bylaws change. Preliminary Conclusions: This threat is directly related to the transition of IANA stewardship Existing measures would be inadequate after NTIA terminates the IANA contract. Proposed measures improve upon existing measures, and may be adequate. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 ________________________________ [http://static.avast.com/emails/avast-mail-stamp.png]<http://www.avast.com/> Ce courrier électronique ne contient aucun virus ou logiciel malveillant parce que la protection Antivirus avast!<http://www.avast.com/> est active.