Excellent. What International Law would you be referring to? el Sent from Dr Lisse's iPad mini

On Dec 16, 2014, at 18:44, Carl Schonander <cschonander@SIIA.net> wrote:

Steve et all:

Would like to propose the inclusion of the following sentence in between the last two sentences of the proposed definition. “Respect for international and national law is essential.”

Carl

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Tuesday, December 16, 2014 7:34 AM To: Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-Accountability] Related work on ICANN's Public Interest

As mentioned on today’s call, here is a proposed definition for global public interest in the context of ICANN:

The 'public' part of public interest is concerned more with users and registrants than with contracted parties and others who are deeply involved at ICANN. And the public interest in ICANN decisions is broader than just a secure and stable DNS. Namely, users and registrants want ICANN to make sure the DNS delivers two essential and measurable qualities: Availability and Integrity, of Registrations and Resolutions

Availability of the DNS is critical for global users who increasingly rely on the Internet for information, communications, and commerce. Domain name resolutions need to be available 24 hours a day, 365 days a year, from anywhere on the globe. Availability also means being able to use any language and any script for both generic and country-code domains and email addresses.

Availability can also apply to domain names sought by registrants: will domains in new gTLDs be available to the public, or will they be captured by insiders? That kind of availability should also be part of the public interest test for ICANN decisions.

Integrity of the DNS is vital to registrants and end-users of the Internet. Registrants rely upon the integrity of domain name registration to ensure that their identities are not misrepresented or misappropriated. E-commerce and Internet financial transactions absolutely require integrity in resolution of domain names and secure delivery of encrypted data.

Internet users depend upon the integrity of domain name services to provide accurate and authentic results when they look up a website or send an email. Integrity is undermined by deceptive practices such as redirecting users to fraudulent websites or providing false information about the true owner of a web domain.

I encourage further discussion on the concept of global public interest in our CCWG. This term is too important to leave undefined or let a few individuals define it to fit their own agenda. If we allow 'public interest' to mean anything and everything, it will end up meaning nothing at all.

— Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482

On 12/16/14, 11:48 AM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello All,

The origin of the strategic work on public interest comes from the strategy panel on Public Responsibility Framework.

https://www.icann.org/en/system/files/files/prf-report-15may14-en.pdf

That panel recommended the following definition:

"Panel Definitions Submitted to ICANN:

As an independent, global organization, ICANN is one of the organizations charged with responsibility for an increasingly important shared global resource: The Internet. As one of the stewards of this resource, ICANN recognizes it has a responsibility to protect and promote the global public interest, both throughout its work, and in collaboration with other entities. ICANN's public responsibility permeates all areas of its work and is at the core of its operations.

ICANN defines the global public interest in relation to the Internet as ensuring the Internet becomes, and continues to be, stable, inclusive, and accessible across the globe so that all may enjoy the benefits of a single and open Internet. In addressing its public responsibility, ICANN must build trust in the Internet and its governance ecosystem."

This definition though has not been formally adopted.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

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For what it's worth, customary international law has been defined as follows: *Customary international law* refers to international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties <http://topics.law.cornell.edu/wex/International_conventions>. According to Article 38(1)(b) of the ICJ Statute <http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0>, customary international law is one of the sources of international law <http://topics.law.cornell.edu/wex/Sources_of_international_law>. Customary international law can be established by showing (1) state practice and (2) opinio juris <http://topics.law.cornell.edu/wex/opinio_juris_(international_law)>. Put another way, “customary international law” results from a general and consistent practice of states that they follow from a sense of legal obligation. Malcolm N. Shaw, *International Law* 80 (5th ed., Cambridge, 2003). http://www.law.cornell.edu/wex/customary_international_law Greg Shatan *Gregory S. Shatan **|* *Abelman Frayne & Schwab* *666 Third Avenue **|** New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>* On Tue, Dec 16, 2014 at 12:24 PM, Carl Schonander <cschonander@siia.net> wrote:

The full body of international law meaning legally binding treaties as well as customary international law. Carl

*From:* Dr Eberhard W Lisse [mailto:el@lisse.na] *Sent:* Tuesday, December 16, 2014 12:03 PM *To:* Carl Schonander *Cc:* Steve DelBianco; Bruce Tonkin; Accountability Cross Community

*Subject:* Re: [CCWG-Accountability] Related work on ICANN's Public Interest

Excellent.

What International Law would you be referring to?

el

Sent from Dr Lisse's iPad mini

On Dec 16, 2014, at 18:44, Carl Schonander <cschonander@SIIA.net> wrote:

Steve et all:

Would like to propose the inclusion of the following sentence in between the last two sentences of the proposed definition. “Respect for international and national law is essential.”

Carl

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Steve DelBianco *Sent:* Tuesday, December 16, 2014 7:34 AM *To:* Bruce Tonkin; Accountability Cross Community *Subject:* Re: [CCWG-Accountability] Related work on ICANN's Public Interest

As mentioned on today’s call, here is a proposed definition for global public interest in the context of ICANN:

The 'public' part of public interest is concerned more with users and registrants than with contracted parties and others who are deeply involved at ICANN.

And the public interest in ICANN decisions is broader than just a secure and stable DNS. Namely, users and registrants want ICANN to make sure the DNS delivers two essential and measurable qualities: *Availability* and *Integrity, *of *Registrations and Resolutions*

*Availability *of the DNS is critical for global users who increasingly rely on the Internet for information, communications, and commerce. Domain name resolutions need to be available 24 hours a day, 365 days a year, from anywhere on the globe. Availability also means being able to use any language and any script for both generic and country-code domains and email addresses.

Availability can also apply to domain names sought by registrants: will domains in new gTLDs be available to the public, or will they be captured by insiders? That kind of availability should also be part of the public interest test for ICANN decisions.

*Integrity* of the DNS is vital to registrants and end-users of the Internet. Registrants rely upon the integrity of domain name registration to ensure that their identities are not misrepresented or misappropriated. E-commerce and Internet financial transactions absolutely require integrity in resolution of domain names and secure delivery of encrypted data.

Internet users depend upon the integrity of domain name services to provide accurate and authentic results when they look up a website or send an email. Integrity is undermined by deceptive practices such as redirecting users to fraudulent websites or providing false information about the true owner of a web domain.

I encourage further discussion on the concept of global public interest in our CCWG. This term is too important to leave undefined or let a few individuals define it to fit their own agenda. If we allow 'public interest' to mean anything and everything, it will end up meaning nothing at all.

—

Steve DelBianco

Executive Director

NetChoice

http://www.NetChoice.org <http://www.netchoice.org/> and http://blog.netchoice.org

+1.202.420.7482

On 12/16/14, 11:48 AM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello All,

The origin of the strategic work on public interest comes from the strategy panel on Public Responsibility Framework.

https://www.icann.org/en/system/files/files/prf-report-15may14-en.pdf

That panel recommended the following definition:

"Panel Definitions Submitted to ICANN:

As an independent, global organization, ICANN is one of the organizations charged

with responsibility for an increasingly important shared global resource: The Internet.

As one of the stewards of this resource, ICANN recognizes it has a responsibility to

protect and promote the global public interest, both throughout its work, and in

collaboration with other entities. ICANN's public responsibility permeates all areas of

its work and is at the core of its operations.

ICANN defines the global public interest in relation to the Internet as ensuring the

Internet becomes, and continues to be, stable, inclusive, and accessible across the

globe so that all may enjoy the benefits of a single and open Internet. In addressing its

public responsibility, ICANN must build trust in the Internet and its governance

ecosystem."

This definition though has not been formally adopted.

Regards,

Bruce Tonkin

_______________________________________________

Accountability-Cross-Community mailing list

Accountability-Cross-Community@icann.org

https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Becky, as if that was of any consequence. el Sent from Dr Lisse's iPad mini

On Dec 16, 2014, at 20:50, Burr, Becky <Becky.Burr@neustar.biz> wrote:

Also, fwiw, the panel in ICM v. ICANN held that ICANN is subject to international law.

J. Beckwith Burr [...]

Dear All, Any treaty unless is ratified by the parties adhered to it is not binding. Moreover, International Customary Law is merely applicable between states and not priovaite coopration ,Moreover, it is not legally binding . However, like many other similar cases it is only morally binding. Consequently that would not be applicable notr to be referred to by CCWG. i SUGGEST WE DO NOT GET INTO THAT DELEMA ,otherwise we never get out of it due to the fact that there are divergence view even between professionals on lega affairs Regards Kavouss 2014-12-16 21:43 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com>:

I don't think that "international law" as referred to in this discussion was intended to mean "law binding states in regards to bilateral and multilateral relationships between themselves (states), emanating from bilateral and multilateral agreements between themselves (states)," Rather, I expect that what was meant was "principles of international law," as referred to in ICANN's Articles of Incorporation, Article 4, (emphasis added):

4. The Corporation shall operate 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 local 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.

Article 38(1) of the Statute of the International Court of Justice refers to “the general principles of law recognized by civilized nations,” which can be described as follows:

The basic notion is that a general principle of international law is some proposition of law so fundamental that it will be found in virtually every legal system. When treaties and customary international law fail to offer a needed international rule, a search may be launched in comparative law to discover if national legal systems use a common legal principle. If such a common legal principle is found, then it is presumed that a comparable principle should be attributed to fill the gap in international law. (Ja nis,

*An Introduction to International Law)*

There is a useful discussion of the interpretation of the term "principles of international law" in the Declaration of the Independent Review Panel in *ICM v. ICANN*, which summarizes the arguments of both parties' international law experts before the panel comes to its own conclusion:

*138. In the view of ICM Registry, principles of international law are*

*applicable; that straightforwardly follows from their specification in the*

*foregoing phrase of Article 4 of the Articles, and from the reasons given in*

*introducing that specification. (Supra, paragraphs 53-54.) Principles of*

*international law in ICM’s analysis include the general principles of law*

*recognized as a source of international law in Article 38 of the Statute of the*

*International Court of Justice. Those principles are not confined, as ICANN*

*argues, to the few principles that may be relevant to the interests of Internet*

*stakeholders, such as principles relating to trademark law and freedom of*

*expression. Rather they include international legal principles of general*

*applicability, such as the fundamental principle of good faith and allied*

*principles such as estoppel and abuse of right. ICM’s expert, Professor*

*Goldsmith, observes that there is ample precedent in international contracts*

*and in the holdings of international tribunals for the proposition that nonsovereigns*

*may choose to apply principles of international law to the*

*determination of their rights and to the disposition of their disputes.*

*139. ICANN and its expert, Professor David Caron, maintain that*

*international law essentially governs relations among sovereign States; and*

*that to the extent that such principles are “relevant” in this case, it is those*

*few principles that are applicable to a private non-profit corporation that*

*bear on the activities of ICANN described in Article 3 of its Articles of*

*Incorporation (supra, paragraph 2). General principles of law, such as that of*

*good faith, are not imported by Article 4 of ICANN’s Articles of Incorporation;*

*still less are principles derived from treaties that protect legitimate*

*expectations. Nor is Article 4 of the Articles a choice-of-law provision; in*

*fact, no governing law has been specified by the disputing parties in this*

*case. If ICANN, by reason of its functions, is to be treated as analogous to*

*public international organizations established by treaty (which it clearly is*

*not), then a relevant principle to be extracted and applied from the*

*jurisprudence of their administrative tribunals is that of deference to the*

*discretionary authority of executive organs and of bodies whose decisions*

*are subject to review.*

*140. In the view of the Panel, ICANN, in carrying out its activities “in*

*conformity with the relevant principles of international law,” is charged with*

*acting consistently with relevant principles of international law, including*

*the general principles of law recognized as a source of international law. 64*

*That follows from the terms of Article 4 of its Articles of Incorporation and*

*from the intentions that animated their inclusion in the Articles, an intention*

*that the Panel understands to have been to subject ICANN to relevant*

*international legal principles because of its governance of an intrinsically*

*international resource of immense importance to global communications and*

*economies. Those intentions might not be realized were Article 4* interpreted to exclude the applicability of general principles of law.

While not dispositive, the Declaration can hardly be dismissed as inconsequential. It is clearly from even a brief review of the document that it is the result of many of hours of careful research, analysis and argument by knowledgeable professionals on both sides of the case, as well as a careful review by the panel (which included a former presiding judge of the ICJ, a distinguished scholar of international arbitration and a former US District Court judge). Given that these contributors trod the very ground upon which we now walk, the Declaration is, at the least, instructive.

Greg Shatan

On Tue, Dec 16, 2014 at 2:20 PM, Dr Eberhard W Lisse <el@lisse.na> wrote:

...

Becky,

as if that was of any consequence.

el

Sent from Dr Lisse's iPad mini

On Dec 16, 2014, at 20:50, Burr, Becky <Becky.Burr@neustar.biz> wrote:

Also, fwiw, the panel in ICM v. ICANN held that ICANN is subject to international law.

J. Beckwith Burr

[...]

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

sent from Google nexus 4 kindly excuse brevity and typos. On 16 Dec 2014 22:32, "Greg Shatan" <gregshatanipc@gmail.com> wrote:

Accountability mechanisms are tools that need to be "fit for purpose".

If you are afraid of fire, you get smoke detectors and fire extinguishers and use flame retardant materials, etc. Proposing a random tool, without identifying the specific threat (and I don't consider "failing to respect the law" to be specific), will not get us very far.

I agree with what Greg say above... accountability solutions/mechanisms are to fix known loop holes/issues and reduce possibility of having such occurrence in other forms. Cheers!

Greg Shatan

Gregory S. Shatan | Abelman Frayne & Schwab

666 Third Avenue | New York, NY 10017-5621

Direct 212-885-9253 | Main 212-949-9022

Fax 212-949-9190 | Cell 917-816-6428

gsshatan@lawabel.com

ICANN-related: gregshatanipc@gmail.com

www.lawabel.com

On Tue, Dec 16, 2014 at 4:10 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:

...

Dear All, Any treaty unless is ratified by the parties adhered to it is not

binding.

...

Moreover, International Customary Law is merely applicable between states and not priovaite coopration ,Moreover, it is not legally binding . However, like many other similar cases it is only morally binding. Consequently that would not be applicable notr to be referred to by CCWG. i SUGGEST WE DO NOT GET INTO THAT DELEMA ,otherwise we never get out of it due to the fact that there are divergence view even between professionals on lega affairs Regards Kavouss

2014-12-16 21:43 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com>:

...

I don't think that "international law" as referred to in this

discussion was intended to mean "law binding states in regards to bilateral and multilateral relationships between themselves (states), emanating from bilateral and multilateral agreements between themselves (states)," Rather, I expect that what was meant was "principles of international law," as referred to in ICANN's Articles of Incorporation, Article 4, (emphasis added):

...

4. The Corporation shall operate 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 local 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.

...

Article 38(1) of the Statute of the International Court of Justice

refers to “the general principles of law recognized by civilized nations,” which can be described as follows:

...

...

The basic notion is that a general principle of international law is

some proposition of law so fundamental that it will be found in virtually every legal system. When treaties and customary international law fail to offer a needed international rule, a search may be launched in comparative law to discover if national legal systems use a common legal principle. If such a common legal principle is found, then it is presumed that a comparable principle should be attributed to fill the gap in international law. (Janis, An Introduction to International Law)

...

There is a useful discussion of the interpretation of the term "principles of international law" in the Declaration of the Independent Review Panel in ICM v. ICANN, which summarizes the arguments of both parties' international law experts before the panel comes to its own conclusion:

...

...

138. In the view of ICM Registry, principles of international law are

applicable; that straightforwardly follows from their specification

in the

...

foregoing phrase of Article 4 of the Articles, and from the reasons

given in

...

introducing that specification. (Supra, paragraphs 53-54.) Principles

of

...

international law in ICM’s analysis include the general principles of

law

...

recognized as a source of international law in Article 38 of the

Statute of the

...

International Court of Justice. Those principles are not confined, as

ICANN

...

argues, to the few principles that may be relevant to the interests

of Internet

...

stakeholders, such as principles relating to trademark law and

freedom of

...

expression. Rather they include international legal principles of

general

...

applicability, such as the fundamental principle of good faith and

allied

...

principles such as estoppel and abuse of right. ICM’s expert,

Professor

...

Goldsmith, observes that there is ample precedent in international

contracts

...

and in the holdings of international tribunals for the proposition

that nonsovereigns

...

may choose to apply principles of international law to the

determination of their rights and to the disposition of their

disputes.

...

139. ICANN and its expert, Professor David Caron, maintain that

international law essentially governs relations among sovereign

States; and

...

that to the extent that such principles are “relevant” in this case,

it is those

...

few principles that are applicable to a private non-profit

corporation that

...

bear on the activities of ICANN described in Article 3 of its

Articles of

...

Incorporation (supra, paragraph 2). General principles of law, such

as that of

...

good faith, are not imported by Article 4 of ICANN’s Articles of

Incorporation;

...

still less are principles derived from treaties that protect

legitimate

...

expectations. Nor is Article 4 of the Articles a choice-of-law

provision; in

...

fact, no governing law has been specified by the disputing parties in

this

...

case. If ICANN, by reason of its functions, is to be treated as

analogous to

...

public international organizations established by treaty (which it

clearly is

...

not), then a relevant principle to be extracted and applied from the

jurisprudence of their administrative tribunals is that of deference

to the

...

discretionary authority of executive organs and of bodies whose

decisions

...

are subject to review.

140. In the view of the Panel, ICANN, in carrying out its activities

“in

...

conformity with the relevant principles of international law,” is

charged with

...

acting consistently with relevant principles of international law,

including

...

the general principles of law recognized as a source of international

law. 64

...

That follows from the terms of Article 4 of its Articles of

Incorporation and

...

from the intentions that animated their inclusion in the Articles, an

intention

...

that the Panel understands to have been to subject ICANN to relevant

international legal principles because of its governance of an

intrinsically

...

international resource of immense importance to global communications

and

...

economies. Those intentions might not be realized were Article 4

interpreted to exclude the applicability of general principles of law.

...

While not dispositive, the Declaration can hardly be dismissed as inconsequential. It is clearly from even a brief review of the document that it is the result of many of hours of careful research, analysis and argument by knowledgeable professionals on both sides of the case, as well as a careful review by the panel (which included a former presiding judge of the ICJ, a distinguished scholar of international arbitration and a former US District Court judge). Given that these contributors trod the very ground upon which we now walk, the Declaration is, at the least, instructive.

Greg Shatan

...

...

On Tue, Dec 16, 2014 at 2:20 PM, Dr Eberhard W Lisse <el@lisse.na> wrote:

...

Becky,

as if that was of any consequence.

el

Sent from Dr Lisse's iPad mini

On Dec 16, 2014, at 20:50, Burr, Becky <Becky.Burr@neustar.biz> wrote:

...

Also, fwiw, the panel in ICM v. ICANN held that ICANN is subject to

international law.

...

...

J. Beckwith Burr

[...]

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Thank you. That would be law binding states in regards to bilateral and multilateral relationships between themselves (states), emanating from bilateral and multilateral agreements between themselves (states), right? How does that affect individuals? Considering entities such as companies, for profit or not, as juristic persons. In particular if and when US Federal and perhaps even State laws pre-empt. greetings, el Sent from Dr Lisse's iPad mini

On Dec 16, 2014, at 19:24, Carl Schonander <cschonander@SIIA.net> wrote:

The full body of international law meaning legally binding treaties as well as customary international law. Carl

From: Dr Eberhard W Lisse [mailto:el@lisse.na] Sent: Tuesday, December 16, 2014 12:03 PM To: Carl Schonander Cc: Steve DelBianco; Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-Accountability] Related work on ICANN's Public Interest

Excellent.

What International Law would you be referring to?

el

Sent from Dr Lisse's iPad mini

On Dec 16, 2014, at 18:44, Carl Schonander <cschonander@SIIA.net> wrote:

Steve et all:

Would like to propose the inclusion of the following sentence in between the last two sentences of the proposed definition. “Respect for international and national law is essential.”

Carl

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Tuesday, December 16, 2014 7:34 AM To: Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-Accountability] Related work on ICANN's Public Interest

As mentioned on today’s call, here is a proposed definition for global public interest in the context of ICANN:

The 'public' part of public interest is concerned more with users and registrants than with contracted parties and others who are deeply involved at ICANN. And the public interest in ICANN decisions is broader than just a secure and stable DNS. Namely, users and registrants want ICANN to make sure the DNS delivers two essential and measurable qualities: Availability and Integrity, of Registrations and Resolutions

Availability of the DNS is critical for global users who increasingly rely on the Internet for information, communications, and commerce. Domain name resolutions need to be available 24 hours a day, 365 days a year, from anywhere on the globe. Availability also means being able to use any language and any script for both generic and country-code domains and email addresses.

Availability can also apply to domain names sought by registrants: will domains in new gTLDs be available to the public, or will they be captured by insiders? That kind of availability should also be part of the public interest test for ICANN decisions.

Integrity of the DNS is vital to registrants and end-users of the Internet. Registrants rely upon the integrity of domain name registration to ensure that their identities are not misrepresented or misappropriated. E-commerce and Internet financial transactions absolutely require integrity in resolution of domain names and secure delivery of encrypted data.

Internet users depend upon the integrity of domain name services to provide accurate and authentic results when they look up a website or send an email. Integrity is undermined by deceptive practices such as redirecting users to fraudulent websites or providing false information about the true owner of a web domain.

I encourage further discussion on the concept of global public interest in our CCWG. This term is too important to leave undefined or let a few individuals define it to fit their own agenda. If we allow 'public interest' to mean anything and everything, it will end up meaning nothing at all.

— Steve DelBianco Executive Director NetChoice http://www.NetChoice.org and http://blog.netchoice.org +1.202.420.7482

On 12/16/14, 11:48 AM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello All,

The origin of the strategic work on public interest comes from the strategy panel on Public Responsibility Framework.

https://www.icann.org/en/system/files/files/prf-report-15may14-en.pdf

That panel recommended the following definition:

"Panel Definitions Submitted to ICANN:

As an independent, global organization, ICANN is one of the organizations charged with responsibility for an increasingly important shared global resource: The Internet. As one of the stewards of this resource, ICANN recognizes it has a responsibility to protect and promote the global public interest, both throughout its work, and in collaboration with other entities. ICANN's public responsibility permeates all areas of its work and is at the core of its operations.

ICANN defines the global public interest in relation to the Internet as ensuring the Internet becomes, and continues to be, stable, inclusive, and accessible across the globe so that all may enjoy the benefits of a single and open Internet. In addressing its public responsibility, ICANN must build trust in the Internet and its governance ecosystem."

This definition though has not been formally adopted.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Carl: I'll ask the questions I posed in the abstract earlier: What are you trying to protect against? Is this a reaction to a past failure of accountability by ICANN, and what exactly was it? What do you hope to accomplish by putting this in? Thanks! Greg Shatan *Gregory S. Shatan **|* *Abelman Frayne & Schwab* *666 Third Avenue **|** New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>* On Tue, Dec 16, 2014 at 5:54 PM, Carl Schonander <cschonander@siia.net> wrote:

Steve et all:

At the risk of once again provoking maybe unneeded debate, here is another suggestion. Suggested language in bold.

Internet users depend upon the integrity of domain name services to provide accurate and authentic results when they look up a website or send an email. Integrity is undermined by deceptive practices such as redirecting users to fraudulent websites or providing false information about the true owner of a web domain. *Per Article 4 of ICANN’s Articles of Incorporation, the public interest is served by conforming with relevant principles of international law and applicable international conventions and local law. *

Carl Schonander

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Carl Schonander *Sent:* Tuesday, December 16, 2014 11:44 AM *To:* Steve DelBianco; Bruce Tonkin; Accountability Cross Community

*Subject:* Re: [CCWG-Accountability] Related work on ICANN's Public Interest

Steve et all:

Would like to propose the inclusion of the following sentence in between the last two sentences of the proposed definition. “Respect for international and national law is essential.”

Carl

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Steve DelBianco *Sent:* Tuesday, December 16, 2014 7:34 AM *To:* Bruce Tonkin; Accountability Cross Community *Subject:* Re: [CCWG-Accountability] Related work on ICANN's Public Interest

As mentioned on today’s call, here is a proposed definition for global public interest in the context of ICANN:

The 'public' part of public interest is concerned more with users and registrants than with contracted parties and others who are deeply involved at ICANN.

And the public interest in ICANN decisions is broader than just a secure and stable DNS. Namely, users and registrants want ICANN to make sure the DNS delivers two essential and measurable qualities: *Availability* and *Integrity, *of *Registrations and Resolutions*

*Availability *of the DNS is critical for global users who increasingly rely on the Internet for information, communications, and commerce. Domain name resolutions need to be available 24 hours a day, 365 days a year, from anywhere on the globe. Availability also means being able to use any language and any script for both generic and country-code domains and email addresses.

Availability can also apply to domain names sought by registrants: will domains in new gTLDs be available to the public, or will they be captured by insiders? That kind of availability should also be part of the public interest test for ICANN decisions.

*Integrity* of the DNS is vital to registrants and end-users of the Internet. Registrants rely upon the integrity of domain name registration to ensure that their identities are not misrepresented or misappropriated. E-commerce and Internet financial transactions absolutely require integrity in resolution of domain names and secure delivery of encrypted data.

Internet users depend upon the integrity of domain name services to provide accurate and authentic results when they look up a website or send an email. Integrity is undermined by deceptive practices such as redirecting users to fraudulent websites or providing false information about the true owner of a web domain.

I encourage further discussion on the concept of global public interest in our CCWG. This term is too important to leave undefined or let a few individuals define it to fit their own agenda. If we allow 'public interest' to mean anything and everything, it will end up meaning nothing at all.

—

Steve DelBianco

Executive Director

NetChoice

http://www.NetChoice.org <http://www.netchoice.org/> and http://blog.netchoice.org

+1.202.420.7482

On 12/16/14, 11:48 AM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello All,

The origin of the strategic work on public interest comes from the strategy panel on Public Responsibility Framework.

https://www.icann.org/en/system/files/files/prf-report-15may14-en.pdf

That panel recommended the following definition:

"Panel Definitions Submitted to ICANN:

As an independent, global organization, ICANN is one of the organizations charged

with responsibility for an increasingly important shared global resource: The Internet.

As one of the stewards of this resource, ICANN recognizes it has a responsibility to

protect and promote the global public interest, both throughout its work, and in

collaboration with other entities. ICANN's public responsibility permeates all areas of

its work and is at the core of its operations.

ICANN defines the global public interest in relation to the Internet as ensuring the

Internet becomes, and continues to be, stable, inclusive, and accessible across the

globe so that all may enjoy the benefits of a single and open Internet. In addressing its

public responsibility, ICANN must build trust in the Internet and its governance

ecosystem."

This definition though has not been formally adopted.

Regards,

Bruce Tonkin

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Eric, I agree with "redirecting users to fraudulent websites" not being relevant in these proceedings, as phishing is not a DNS issue per se. However "providing false information ..." on WHOIS I do have an issue with. False WHOIS information is not acceptable to me at all, but ICANN/IANA will have no longer any relationship with any ccTLD unless a contract exists between the two, and then it'll be 250-odd bilateral relationships at best. There is no ccNSO policy on WHOIS accuracy, so not even the members have any ICANN/IANA-bound (?) obligation. So I am not sure how we can put that in either. I agree we are fairly safe in that California and Federal Law apply. But herein lies also a crux, Congress can legislate... As an aside, I am putting money where my mouth is, we (NA-NiC) are looking at every single domain name registered with us (.NA) so that the Registrant/Admin Contact of each is correct. Our policy does not allow for false or obfuscated data, but we find regular issues. greetings, el Sent from Dr Lisse's iPad mini

On Dec 17, 2014, at 05:36, Eric Brunner-Williams <ebw@abenaki.wabanaki.net> wrote:

...

On 12/16/14 2:54 PM, Carl Schonander wrote: ...Integrity is undermined by deceptive practices such as redirecting users to fraudulent websites or providing false information ...

Dear Carl,

As a definitional statement this could apply to ISPs monitizing DNS resolution failure, to registries wildcarding (Verisign's historic Sitefinder and the now historic .museum wildcard), privacy and proxy registration services, etc.

As a definitional statement it is inobvious how privileged reference to resolution data ("redirecting users", supra) or registrant data ("false information", supra) could be extended to exploits of the temporal consistency of the DNS such as Fast Flux Hosting or exploits of the public routing system such as BGP hijacking.

Do you think you could extend your definitional attempt to include the issues of central concern to the larger community?

--

Turning to your suggestion to Steve DelBianco and the clarification sought by Dr. Eberhard Lisse, you wrote:

...

relevant principles of international law and applicable international conventions and local law.

Could you suggest which principles of international law are relevant and which international conventions and local laws are applicable? If you'll refer to the 2002 exchanges between Joe Simms et al and Michael Froomkin [1], one of Mr. Simms central points was that ICANN was sui generis and American Administrative Law did not apply, offered in refutation of Professor Froomkin's claim that American Administrative Law did apply.

I suggest we're fairly safe in reasoning what California law, and what IRS regulation, applies to the California domiciled 501(c)(3) corporation. Where we may not yet know what law applies to the contractor for the IANA Functions -- the core of the Simms vs Froomkin exchange of 2002 -- let alone the nine words before "and local law", quoted above -- is what, if any, domestic administrative law applies, before we attempt to harmonize the IANA Functions as implemented by a contractor with international law and conventions.

Thanks in advance, Eric Brunner-Williams Eugene, Oregon

[1] http://law.lclark.edu/law_reviews/lewis_and_clark_law_review/past_issues/vol... _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Why do we need to put something vague in, which is furthermore self evident? el On 2014-12-17 15:13 , Burr, Becky wrote:

Suggest "applicable national and international law"

Sent from my iPad

On Dec 16, 2014, at 11:49 AM, Carl Schonander <cschonander@SIIA.net <mailto:cschonander@SIIA.net>> wrote:

...

Steve et all:

Would like to propose the inclusion of the following sentence in between the last two sentences of the proposed definition. “Respect for international and national law is essential.”

Carl

I support Becky Burr's suggested formulation. To Gregory Shatan's questions, it seems to me that applicable law determines what a "fraudulent website is." Carl Schonander From: Burr, Becky [mailto:Becky.Burr@neustar.biz] Sent: Wednesday, December 17, 2014 8:13 AM To: Carl Schonander Cc: Steve DelBianco; Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-Accountability] Related work on ICANN's Public Interest Suggest "applicable national and international law" Sent from my iPad On Dec 16, 2014, at 11:49 AM, Carl Schonander <cschonander@SIIA.net<mailto:cschonander@SIIA.net>> wrote: Steve et all: Would like to propose the inclusion of the following sentence in between the last two sentences of the proposed definition. "Respect for international and national law is essential." Carl From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Tuesday, December 16, 2014 7:34 AM To: Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-Accountability] Related work on ICANN's Public Interest As mentioned on today's call, here is a proposed definition for global public interest in the context of ICANN: The 'public' part of public interest is concerned more with users and registrants than with contracted parties and others who are deeply involved at ICANN. And the public interest in ICANN decisions is broader than just a secure and stable DNS. Namely, users and registrants want ICANN to make sure the DNS delivers two essential and measurable qualities: Availability and Integrity, of Registrations and Resolutions Availability of the DNS is critical for global users who increasingly rely on the Internet for information, communications, and commerce. Domain name resolutions need to be available 24 hours a day, 365 days a year, from anywhere on the globe. Availability also means being able to use any language and any script for both generic and country-code domains and email addresses. Availability can also apply to domain names sought by registrants: will domains in new gTLDs be available to the public, or will they be captured by insiders? That kind of availability should also be part of the public interest test for ICANN decisions. Integrity of the DNS is vital to registrants and end-users of the Internet. Registrants rely upon the integrity of domain name registration to ensure that their identities are not misrepresented or misappropriated. E-commerce and Internet financial transactions absolutely require integrity in resolution of domain names and secure delivery of encrypted data. Internet users depend upon the integrity of domain name services to provide accurate and authentic results when they look up a website or send an email. Integrity is undermined by deceptive practices such as redirecting users to fraudulent websites or providing false information about the true owner of a web domain. I encourage further discussion on the concept of global public interest in our CCWG. This term is too important to leave undefined or let a few individuals define it to fit their own agenda. If we allow 'public interest' to mean anything and everything, it will end up meaning nothing at all. - Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.netchoice.org_&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=EQVZg-7PtvsSDsUTMuN8RjKj00sEhoEh0lHt-Y_9dks&s=4OE4GuoY19Ko-svZgB-UibQvXubonXk00XlrqkQ8E8Y&e=> and http://blog.netchoice.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__blog.netchoice.org_&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=EQVZg-7PtvsSDsUTMuN8RjKj00sEhoEh0lHt-Y_9dks&s=8QFrn_IPMj59UBlzLgkOyZmcCcIDOvjBNjYs73NiIyo&e=> +1.202.420.7482 On 12/16/14, 11:48 AM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello All, The origin of the strategic work on public interest comes from the strategy panel on Public Responsibility Framework. https://www.icann.org/en/system/files/files/prf-report-15may14-en.pdf<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_prf-2Dreport-2D15may14-2Den.pdf&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=EQVZg-7PtvsSDsUTMuN8RjKj00sEhoEh0lHt-Y_9dks&s=5SyxRf2zLPj0xiLplZTv2tv1fqvk3cyfr8Gg5XvMCWs&e=> That panel recommended the following definition: "Panel Definitions Submitted to ICANN: As an independent, global organization, ICANN is one of the organizations charged with responsibility for an increasingly important shared global resource: The Internet. As one of the stewards of this resource, ICANN recognizes it has a responsibility to protect and promote the global public interest, both throughout its work, and in collaboration with other entities. ICANN's public responsibility permeates all areas of its work and is at the core of its operations. ICANN defines the global public interest in relation to the Internet as ensuring the Internet becomes, and continues to be, stable, inclusive, and accessible across the globe so that all may enjoy the benefits of a single and open Internet. In addressing its public responsibility, ICANN must build trust in the Internet and its governance ecosystem." This definition though has not been formally adopted. Regards, Bruce Tonkin _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=EQVZg-7PtvsSDsUTMuN8RjKj00sEhoEh0lHt-Y_9dks&s=qHI3ahp_Vve4O-qcrir36uFAzXiNFFbqyL2n0GledZQ&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...

Dear All, Thank you very much for all contributions I understand your anxiety, your perplexity and your fear to touch this very sensitive issue. I encourage you all that you need to tackle the issue matter how difficult and controversial it would be. We must clearly mention the following What is the description of the term accountability in a concise, precise and realistic / pragmatic matter within the frame work of international law? We need to clearly and specifically mention what are the Legal Framework which would be applicable to the transitioned function? ,no doubt it should not be Californian Law as we do not wish to be at the mercy of Californian Judges We need to clearly and specifically mention what is the accountability environment that we are talking about? Who is accountable to whom and on what? What are the mechanism (s) which should be duly put in place to implement that accountability? Who are the members of that mechanism? How multistakeholders, including Governments should act according to their role and responsibilities? Apart from governments representation whose legitimacy are enshrined with their credential form Their respective Governments (participation Credentials) what are the legitimacy of other multistakeholder ? .No doubt the notion of someone speaking on behalf of herself or himself is totally illegitimate and unacceptable What are the partitioning in representation and footing between and of the four informally recognized categories of multistakeholders? Governments Civil Society Private Sector Technical Community and Academic How the legitimacy of each group together with their accreditation should examine and ensured? , Who define and approve the terms and conditions and scope of accountability? What are the criteria to determine whether or not those terms, conditions and scope have been implemented? Who are policy making entities? Who are the policy implementing entities? What is the policy in question? What is the relation between the current A o C in force and the envisaged accountability? What is the future of ICANN BY LAWS? Who can amend that? How can it be amended? Does the accountability terms and condition form part of Bylaw: Why should it not be renamed to something else such as Convention, Charter, and Constitution and so on? Should the current structure of ICANN be retained? If not, what would be the revised structure of ICANN? What would be the role of NTIA after transition? Should it be given the authority to continue its legacy on some taks such as contract with Verisign? There are many questions to be answered. Regards Kavouss 2014-12-17 17:53 GMT+01:00 Malcolm Hutty <malcolm@linx.net>:

On 2014-12-17 16:07, Jordan Carter wrote:

...

Thanks Bruce, Steve.

I've read the rest of the thread and think it goes down a little bit of a rabbit hole, but that's OK (maybe it means the same one won't appear later?).

For me the primary concern with a non-defined use of the term "public interest" is that it gives license to the person using it to advance beyond the ICANN remit of technical coordination of the DNS and other Internet identifiers, into all sorts of other things. Alternatively, it can be used to try and dismiss proposed policy or practice that make sense to the operational communities.

On that basis I have a degree of comfort with Steve's post. If we are clear that ICANN serves the global public interest by serving the operational communities and coordinating among and between names, numbers and protocols, then other questions get a bit easier to answer.

I wholeheartedly agree, and I think Steve's post points the way forward on defining what we want to hold ICANN accountable for doing.

I would also apply the same reasoning to the comments going on a parallel thread on "principles of international public law".

Certainly I would regard it as being in the public interest that ICANN should discharge its functions properly, and in accordance with generally accepted principles of law. I would be very wary, however, of linking those concepts in a way that pointed to ICANN's functions being bent towards promoting the multitude of objectives and outcomes that might be said to be a matter of public interest, or called for by principles of international public law.

So if we are to refer to these concepts, I think it is very important *how* we refer to them. We should be very careful not to create a sense that the narrow scope of ICANN's responsibilities for DNS is supplemented by a broader ambition to use the DNS to pursue a general and unbounded set of policies "in the public interest", or to accept responsibility for achieving the goals set by the wide range of instruments and measures that make up international public law.

Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

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Eric - I don't think that the IANA Functions Contract provides any support for IANA adding IDNs, dealing with IPv4 issues, or DNS sec. Those are all policy issues to be addressed through ICANN's policy development processes, the number registry processes, etc. 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 Reduce your environmental footprint.  Print only if necessary. Follow Neustar:    Facebook    LinkedIn    Twitter The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Eric Brunner-Williams Sent: Wednesday, December 17, 2014 4:21 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] Related work on ICANN's Public Interest On 12/17/14 8:53 AM, Malcolm Hutty wrote:

Certainly I would regard it as being in the public interest that ICANN should discharge its functions properly, and in accordance with generally accepted principles of law.

Dear Malcolm, What "generally accepted principles of law" do you suggest apply to the management of protocol parameters? Similarly, what "generally accepted principles of law" do you suggest apply to the management of globally unique address identifiers? And finally, what "generally accepted principles of law" do you suggest apply to the management of globally unique resource-to-address identifiers (domain names)? There is of course, from the Green and White Papers period, competition policy and a transition from an incumbent monopoly contract to a competitive regime, but other than that, where do the "generally accepted principles of law" properly inform the party or parties conducting each of these three management activities? Where, among the "generally accepted principles of law" would one look for support of the proposition that adding labels in the Han Script to the IANA root zone is in "the public interest"? Similarly, where would one look for support of the proposition that allocation of scarce v4 addresses not be made solely upon the basis of highest price offered? And finally, where would one look for support of the proposition that algorithms for signing zones include the GOST suite? My point being that when the IANA Functions are as narrowly construed as we can sensibly make them, "public interest" and "generally accepted principles of law" are difficult to find points of association, let alone concordance. Regards, Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...

Ok, that makes sense. 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 Reduce your environmental footprint.  Print only if necessary. Follow Neustar:    Facebook    LinkedIn    Twitter The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. -----Original Message----- From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Wednesday, December 17, 2014 5:16 PM To: Burr, Becky; 'accountability-cross-community@icann.org' Subject: Re: [CCWG-Accountability] Related work on ICANN's Public Interest Hi Becky, Correct. These do not arise from the IANA Functions Contract, nor from "generally accepted principles of law". I'm attempting to make the point that the latter -- "generally accepted principles of law" -- provides little if any basis for significant activities of the contractor. I'm also alluding to Malcolm's closing comment:

We should be very careful not to create a sense that the narrow scope of ICANN's responsibilities for DNS is supplemented by a broader ambition to use the DNS to pursue a general and unbounded set of policies "in the public interest", l attempt to show that even when the IANA Functions are as narrowly construed as we can sensibly make them, "public interest" leads us to larger ends than we originally had, or are reflected in the several IANA Functions Contracts since 1998.

Regards, Eric Brunner-Williams Eugene, Oregon On 12/17/14 1:45 PM, Burr, Becky wrote:

Eric - I don't think that the IANA Functions Contract provides any support for IANA adding IDNs, dealing with IPv4 issues, or DNS sec. Those are all policy issues to be addressed through ICANN's policy development processes, the number registry processes, etc.

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

Reduce your environmental footprint. Print only if necessary. Follow Neustar: Facebook LinkedIn Twitter

The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.

-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Eric Brunner-Williams Sent: Wednesday, December 17, 2014 4:21 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] Related work on ICANN's Public Interest

On 12/17/14 8:53 AM, Malcolm Hutty wrote:

...

Certainly I would regard it as being in the public interest that ICANN should discharge its functions properly, and in accordance with generally accepted principles of law. Dear Malcolm,

What "generally accepted principles of law" do you suggest apply to the management of protocol parameters?

Similarly, what "generally accepted principles of law" do you suggest apply to the management of globally unique address identifiers?

And finally, what "generally accepted principles of law" do you suggest apply to the management of globally unique resource-to-address identifiers (domain names)?

There is of course, from the Green and White Papers period, competition policy and a transition from an incumbent monopoly contract to a competitive regime, but other than that, where do the "generally accepted principles of law" properly inform the party or parties conducting each of these three management activities?

Where, among the "generally accepted principles of law" would one look for support of the proposition that adding labels in the Han Script to the IANA root zone is in "the public interest"?

Similarly, where would one look for support of the proposition that allocation of scarce v4 addresses not be made solely upon the basis of highest price offered?

And finally, where would one look for support of the proposition that algorithms for signing zones include the GOST suite?

My point being that when the IANA Functions are as narrowly construed as we can sensibly make them, "public interest" and "generally accepted principles of law" are difficult to find points of association, let alone concordance.

Regards, Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mail man_listinfo_accountability-2Dcross-2Dcommunity&d=AwICAg&c=MOptNlVtIET eDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=21WkLbYAQg aFgGddhTzyvdthwNn0XurygbLmS45PSjY&s=bCcyHZCqN-IOwtwknipHWSJY1WdQkDrV1t DAuhQIQTI&e=

Exactly, hence there is no base in law. el Sent from Dr Lisse's iPad mini

On Dec 17, 2014, at 23:45, Burr, Becky <Becky.Burr@neustar.biz> wrote:

Eric - I don't think that the IANA Functions Contract provides any support for IANA adding IDNs, dealing with IPv4 issues, or DNS sec. Those are all policy issues to be addressed through ICANN's policy development processes, the number registry processes, etc.

J. Beckwith Burr [...]

On 2014-12-17 21:20, Eric Brunner-Williams wrote:

On 12/17/14 8:53 AM, Malcolm Hutty wrote:

...

Certainly I would regard it as being in the public interest that ICANN should discharge its functions properly, and in accordance with generally accepted principles of law.

Dear Malcolm,

What "generally accepted principles of law" do you suggest apply to the management of protocol parameters?

[snip: other similar questions, that ultimately lead to:]

My point being that when the IANA Functions are as narrowly construed as we can sensibly make them, "public interest" and "generally accepted principles of law" are difficult to find points of association, let alone concordance.

Eric, I'm a bit surprised by the tone of your reply, which appears to signal a disagreement between us that I don't recognise in the argument itself. The main thrust of my intervention was to say that we should not make broad statements about the public interest and "generally accepted principles of international law" that could be construed to enlarge ICANN's role. Your intervention seems to be aligned with this. I am not a PIL expert, so I cannot guess what principles of PIL may be applicable to ICANN. There certainly are broad principles that I do believe are applicable to ICANN (including transparency, a rules-based approach, bottom-up multi-stakeholder policy-making, impartiality of treatment under the rules etc); some of these may be found in PIL too, or maybe not, I don't know. I do believe ICANN should apply only aspects of PIL as relevant to its existing mission, rather than reshaping its mission to pursue the multifarious goals of international public policy. On this may I take it we are agreed? Malcolm -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

Eric, I'm not sure why you appear to be limiting your inquiry to the "technical coordination of unique endpoint identifiers" and the IANA Function, narrowly construed. Or is your point that from that fairly narrow set of tasks, a broad variety of developments, innovations and other consequences have flowed, hopefully in the public interest (but certainly affecting the public interest.)? On a separate note, the way I look at the whole "applicable law" point is that ICANN (like any person or entity) should be expected to act within the laws applicable to it. To put it another way, they shouldn't break the law. There is some validity to Dr. Lisse's point that this is both vague and self-evident, but it gives folks some comfort to say it in things like Articles of Incorporation (indeed, there's a certain level of requirement for statements like that in documents like that). The linkage between acting in the "public interest" and not breaking the law is somewhat cloudy. Many corporations (and people) do the latter without doing the former. And sometimes (e.g., the Pentagon Papers or (arguably, to some) Edward Snowden) do the former while failing to do the latter. In any event, I do think there is some value in clarifying the concept of "public interest" in the context of ICANN, but I am not seeing the value in trying to create a linkage between that concept and the concept of "applicable law." Greg Shatan *Gregory S. Shatan **|* *Abelman Frayne & Schwab* *666 Third Avenue **|** New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>* On Thu, Dec 18, 2014 at 2:54 PM, Eric Brunner-Williams < ebw@abenaki.wabanaki.net> wrote:

Malcolm,

Earlier, you (and several others) offered several phrases containing some qualifier and the word "law" as useful language to add.

My first point was to illustrate that neither "law" nor "contract" have much bearing on the set of activities usually referred to as the technical coordination of unique endpoint identifiers. Dr. Lisse made much the same point as did anyone else asking "which law?", and by now you've had a chance to see Becky Burr's comment.

My second point, which I think you've missed or I expressed poorly, is that when we construe the IANA Function very narrowly, and informed only by the commentary of the IAB, e.g., RFC 2826, historically significant and broad reaching "public interest" consequences follow. Scripts other than Latin now form DNS labels throughout the namespaces, addresses are allocated according to some forms of equity of access, etc.

Restated, the mere stewardship of unique endpoint identifiers and protocol parameters entails a significant public interest capability, and responsibility. This was true prior to 1998 when Dr. Postel held most the responsibility personally, and remains true after 1998 when these responsibilities began a process of institutionalization.

I hope this clarifies my earlier note.

Regards, Eric Brunner-Williams Eugene, Oregon

On 12/18/14 2:35 AM, Malcolm Hutty wrote:

...

On 2014-12-17 21:20, Eric Brunner-Williams wrote:

...

On 12/17/14 8:53 AM, Malcolm Hutty wrote:

...

Certainly I would regard it as being in the public interest that ICANN should discharge its functions properly, and in accordance with generally accepted principles of law.

Dear Malcolm,

What "generally accepted principles of law" do you suggest apply to the management of protocol parameters?

[snip: other similar questions, that ultimately lead to:]

...

My point being that when the IANA Functions are as narrowly construed as we can sensibly make them, "public interest" and "generally accepted principles of law" are difficult to find points of association, let alone concordance.

Eric,

I'm a bit surprised by the tone of your reply, which appears to signal a disagreement between us that I don't recognise in the argument itself.

The main thrust of my intervention was to say that we should not make broad statements about the public interest and "generally accepted principles of international law" that could be construed to enlarge ICANN's role.

Your intervention seems to be aligned with this.

I am not a PIL expert, so I cannot guess what principles of PIL may be applicable to ICANN. There certainly are broad principles that I do believe are applicable to ICANN (including transparency, a rules-based approach, bottom-up multi-stakeholder policy-making, impartiality of treatment under the rules etc); some of these may be found in PIL too, or maybe not, I don't know.

I do believe ICANN should apply only aspects of PIL as relevant to its existing mission, rather than reshaping its mission to pursue the multifarious goals of international public policy. On this may I take it we are agreed?

Malcolm

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Eric, Thanks for your reply and confirmation. I think that if one pauses at your statement "what we mean by "public interest" is determined by our social expectations -- as residents of France (and Europe) and as residents of the United States (and North America)" (or Namibia or Argentina, etc. etc.)" the great difficulty in defining an overarching definition of "public interest" for ICANN becomes clear. And I think it goes beyond geographically-driven social differences -- to political, cultural, economic and other differences, etc. For instance, someone who felt that bridging the digital divide was a paramount "public interest" concern would emphatically say yes in answer to your questions. Someone whose public interest concerns lay elsewhere might say that those are nice, but should not be a priority over [xyz]. And there could be more extreme reactions than that to those with different priorities or different perspectives on how important the "public interest" is versus other interests. Greg *Gregory S. Shatan **|* *Abelman Frayne & Schwab* *666 Third Avenue **|** New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>* On Thu, Dec 18, 2014 at 5:45 PM, Eric Brunner-Williams < ebw@abenaki.wabanaki.net> wrote:

On 12/18/14 2:09 PM, Greg Shatan wrote:

...

Eric,

I'm not sure why you appear to be limiting your inquiry to the "technical coordination of unique endpoint identifiers" and the IANA Function, narrowly construed. Or is your point that from that fairly narrow set of tasks, a broad variety of developments, innovations and other consequences have flowed, hopefully in the public interest (but certainly affecting the public interest.)?

Starting at "Or is your point ..." Yes.

On a separate note, the way I look at the whole "applicable law" point is

...

that ICANN (like any person or entity) should be expected to act within the laws applicable to it. To put it another way, they shouldn't break the law. There is some validity to Dr. Lisse's point that this is both vague and self-evident, but it gives folks some comfort to say it in things like Articles of Incorporation (indeed, there's a certain level of requirement for statements like that in documents like that). The linkage between acting in the "public interest" and not breaking the law is somewhat cloudy. Many corporations (and people) do the latter without doing the former. And sometimes (e.g., the Pentagon Papers or (arguably, to some) Edward Snowden) do the former while failing to do the latter.

In any event, I do think there is some value in clarifying the concept of "public interest" in the context of ICANN, but I am not seeing the value in trying to create a linkage between that concept and the concept of "applicable law."

I don't know if you recall the discussion between Jeff Neuman and Bertrand de la Chapelle -- if I recall correctly -- at the Paris meeting -- it was the first of those awkard "facilitated conversations" with colored bits of paper for the rest of us to indicate our responses to the theses of Jeff and Bertrand. They talked to, and past, each other, attempting to make cases for what "the public interest" might be. To my mind the enduring value of that moment (and others later in policy development contexts) was the demonstration that what we mean by "public interest" is determined by our social expectations -- as residents of France (and Europe) and as residents of the United States (and North America).

If we are to "clarify the concept" I suspect that starting with explicit questions like "should we extend IDN to meet the requirements for lesser known languages?" or "should we promote registrar and registry formations in developing economies?" will be useful -- questions rather remote from "applicable law".

These two example questions, to be sure, are outside of the remit of the CCWG, but if we are to detour to define or clarify "public interest", the details will be important.

Regards, Eric Brunner-Williams Eugene, Oregon

Greg, Comments somewhat inline and below. On 12/18/14 2:56 PM, Greg Shatan wrote:

Eric,

Thanks for your reply and confirmation. I think that if one pauses at your statement "what we mean by "public interest" is determined by our social expectations -- as residents of France (and Europe) and as residents of the United States (and North America)" (or Namibia or Argentina, etc. etc.)" the great difficulty in defining an overarching definition of "public interest" for ICANN becomes clear. And I think it goes beyond geographically-driven social differences -- to political, cultural, economic and other differences, etc.

As you note, the reasons for differences in framing "public interest" is larger than mere location.

For instance, someone who felt that bridging the digital divide was a paramount "public interest" concern would emphatically say yes in answer to your questions. Someone whose public interest concerns lay elsewhere might say that those are nice, but should not be a priority over [xyz]. And there could be more extreme reactions than that to those with different priorities or different perspectives on how important the "public interest" is versus other interests.

In my response to Malcolm Hutty, to which you originally responded, I offered "mere stewardship of unique endpoint identifiers and protocol parameters" and "informed only by the commentary of the IAB, e.g., RFC 2826" as sufficient to create "significant public interest capability, and responsibility". RFC 2826 is the " IAB Technical Comment on the Unique DNS Root" [1]. My choice of examples of public interest policy development in my response to Mr. Hutty -- IDNs, address allocation during exhaustion, and zone signing algorithms, have a non-trivial relation to 2826. One or more, if not addressed, presented the possibility of preempting the rational central to RFC 2826. In my response to your note I simply extended the use case for IDNs from where we were in the 2003 and 2010 IDN and IDNA exercises to where we are today with Script Generation Panels, and of course, the ICANN Board of Directors Nairobi direction to the Community to study supporting applicants from underdeveloped economies. I didn't mention "bridging the digital divide", which, as you observed, is not universally compelling. Again, if we are to detour to define or clarify "public interest", the details will be important, as is the case for the central point of the CCWG-Accountability exercise. I hope this finally clarifies my prior comments to you and Mr. Hutty. Regards, Eric Brunner-Williams Eugene, Oregon [1] https://datatracker.ietf.org/doc/rfc2826/

Greg

*Gregory S. Shatan **|****Abelman Frayne & Schwab*

*666 Third Avenue **|**New York, NY 10017-5621*

*Direct*212-885-9253 *| **Main*212-949-9022

*Fax*212-949-9190 *|* *Cell *917-816-6428

*/gsshatan@lawabel.com <mailto:gsshatan@lawabel.com>/*

*ICANN-related: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> *

*/www.lawabel.com <http://www.lawabel.com/>/*

On Thu, Dec 18, 2014 at 5:45 PM, Eric Brunner-Williams <ebw@abenaki.wabanaki.net <mailto:ebw@abenaki.wabanaki.net>> wrote:

On 12/18/14 2:09 PM, Greg Shatan wrote:

Eric,

I'm not sure why you appear to be limiting your inquiry to the "technical coordination of unique endpoint identifiers" and the IANA Function, narrowly construed. Or is your point that from that fairly narrow set of tasks, a broad variety of developments, innovations and other consequences have flowed, hopefully in the public interest (but certainly affecting the public interest.)?

Starting at "Or is your point ..." Yes.

On a separate note, the way I look at the whole "applicable law" point is that ICANN (like any person or entity) should be expected to act within the laws applicable to it. To put it another way, they shouldn't break the law. There is some validity to Dr. Lisse's point that this is both vague and self-evident, but it gives folks some comfort to say it in things like Articles of Incorporation (indeed, there's a certain level of requirement for statements like that in documents like that). The linkage between acting in the "public interest" and not breaking the law is somewhat cloudy. Many corporations (and people) do the latter without doing the former. And sometimes (e.g., the Pentagon Papers or (arguably, to some) Edward Snowden) do the former while failing to do the latter.

In any event, I do think there is some value in clarifying the concept of "public interest" in the context of ICANN, but I am not seeing the value in trying to create a linkage between that concept and the concept of "applicable law."

I don't know if you recall the discussion between Jeff Neuman and Bertrand de la Chapelle -- if I recall correctly -- at the Paris meeting -- it was the first of those awkard "facilitated conversations" with colored bits of paper for the rest of us to indicate our responses to the theses of Jeff and Bertrand. They talked to, and past, each other, attempting to make cases for what "the public interest" might be. To my mind the enduring value of that moment (and others later in policy development contexts) was the demonstration that what we mean by "public interest" is determined by our social expectations -- as residents of France (and Europe) and as residents of the United States (and North America).

If we are to "clarify the concept" I suspect that starting with explicit questions like "should we extend IDN to meet the requirements for lesser known languages?" or "should we promote registrar and registry formations in developing economies?" will be useful -- questions rather remote from "applicable law".

These two example questions, to be sure, are outside of the remit of the CCWG, but if we are to detour to define or clarify "public interest", the details will be important.

Regards, Eric Brunner-Williams Eugene, Oregon