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.
Hello Steve, Regarding Street test #24 – you note that the NTIA could cancel its contract with ICANN if ICANN were to broaden its scope by changing its strategic plan when a new CEO is appointed. I can see that the community might want to be able to override the Board if it went outside of its mandate, but for the IANA functions I would assume this is only an issue if it meant that ICANN was no longer performing to the standards in the IANA contract. I.e. I don’t see this as directly connected to the NTIA transferring stewardship of IANA – but I do see that it fits into the ICANN accountability discussion. I see this as a bit of a common thread in discussions on the IANA transition – i.e. the “threat” that NTIA will cancel the contract if ICANN does something the community doesn’t like that is unrelated to the IANA function. To me NTIA is ensuring through the IANA contract that the IANA technical functions are performed to the standard expected of the community – nothing more. The NTIA does not have any over-ride/veto powers on the strategic plan., and the US Government is a stakeholder in the ICANN community in the development of the strategic plan like everyone else. This is one of the reasons why the Board recommended that CCWG operate as a separate initiative to look at ways to improve accountability, and ensure that ICANN's strategic plan is in accordance with the wishes of the community. Regards, Bruce Tonkin
Bruce, In the Singapore meeting just after the IANA transition was announced, many in the community raised concern that ICANN would have no external accountability once the organization was no longer at-risk of losing the IANA contract. Secretary Strickling acknowledged that the IANA contract provided ‘discipline’ over ICANN, beyond its execution of the IANA functions. That is the reason we established this CCWG — to enhance ICANN’s overall accountability to the community. — Steve From: Bruce Tonkin Date: Tuesday, March 3, 2015 at 12:14 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Additional Stress Tests to discuss Hello Steve, Regarding Street test #24 – you note that the NTIA could cancel its contract with ICANN if ICANN were to broaden its scope by changing its strategic plan when a new CEO is appointed. I can see that the community might want to be able to override the Board if it went outside of its mandate, but for the IANA functions I would assume this is only an issue if it meant that ICANN was no longer performing to the standards in the IANA contract. I.e. I don’t see this as directly connected to the NTIA transferring stewardship of IANA – but I do see that it fits into the ICANN accountability discussion. I see this as a bit of a common thread in discussions on the IANA transition – i.e. the “threat” that NTIA will cancel the contract if ICANN does something the community doesn’t like that is unrelated to the IANA function. To me NTIA is ensuring through the IANA contract that the IANA technical functions are performed to the standard expected of the community – nothing more. The NTIA does not have any over-ride/veto powers on the strategic plan., and the US Government is a stakeholder in the ICANN community in the development of the strategic plan like everyone else. This is one of the reasons why the Board recommended that CCWG operate as a separate initiative to look at ways to improve accountability, and ensure that ICANN's strategic plan is in accordance with the wishes of the community. 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
I think the reason they often are tried together is that the community is looking for teeth for the accountability mechanisms, Bruce. The admittedly abstract "backstop" role that NITA played is part of what needs to be replaced. Whether IANA is the right tool is subject to debate but I think it's a mistake to take it off the table. -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Tuesday, March 3, 2015 12:14 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Additional Stress Tests to discuss Hello Steve, Regarding Street test #24 – you note that the NTIA could cancel its contract with ICANN if ICANN were to broaden its scope by changing its strategic plan when a new CEO is appointed. I can see that the community might want to be able to override the Board if it went outside of its mandate, but for the IANA functions I would assume this is only an issue if it meant that ICANN was no longer performing to the standards in the IANA contract. I.e. I don’t see this as directly connected to the NTIA transferring stewardship of IANA – but I do see that it fits into the ICANN accountability discussion. I see this as a bit of a common thread in discussions on the IANA transition – i.e. the “threat” that NTIA will cancel the contract if ICANN does something the community doesn’t like that is unrelated to the IANA function. To me NTIA is ensuring through the IANA contract that the IANA technical functions are performed to the standard expected of the community – nothing more. The NTIA does not have any over-ride/veto powers on the strategic plan., and the US Government is a stakeholder in the ICANN community in the development of the strategic plan like everyone else. This is one of the reasons why the Board recommended that CCWG operate as a separate initiative to look at ways to improve accountability, and ensure that ICANN's strategic plan is in accordance with the wishes of the community. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
In regard to this statement-- " To me NTIA is ensuring through the IANA contract that the IANA technical functions are performed to the standard expected of the community – nothing more. The NTIA does not have any over-ride/veto powers on the strategic plan., and the US Government is a stakeholder in the ICANN community in the development of the strategic plan like everyone else. This is one of the reasons why the Board recommended that CCWG operate as a separate initiative to look at ways to improve accountability, and ensure that ICANN's strategic plan is in accordance with the wishes of the community." --I must respectfully dissent from the "nothing more" characterization. It is widely recognized that US control over the periodic re-awarding of the IANA contract conferred upon the US substantial restraining influence upon ICANN the organization that went far beyond performance of the IANA functions. Indeed, if that had not been the case, if the scope of the US role was indeed limited to assurance of proper performance of the IANA functions and "nothing more", then how could that unique US clerical role have grown into the "Irritant" described by Secretary Strickling; an irritant that led to the issuance of the Montevideo Statement and other actions designed to terminate and transition that role in the post-Snowden environment? It is up to the community designing the accountability measures to determine what is required to replace the constraining effect conferred upon the US by its unique counterparty role in the current IANA arrangement and, more importantly, to determine which of those new accountability measures must be finalized, accepted, and implemented in advance of the transition being consummated. 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] On Behalf Of Jonathan Zuck Sent: Tuesday, March 03, 2015 7:08 AM To: Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-ACCT] Additional Stress Tests to discuss I think the reason they often are tried together is that the community is looking for teeth for the accountability mechanisms, Bruce. The admittedly abstract "backstop" role that NITA played is part of what needs to be replaced. Whether IANA is the right tool is subject to debate but I think it's a mistake to take it off the table. -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Tuesday, March 3, 2015 12:14 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Additional Stress Tests to discuss Hello Steve, Regarding Street test #24 – you note that the NTIA could cancel its contract with ICANN if ICANN were to broaden its scope by changing its strategic plan when a new CEO is appointed. I can see that the community might want to be able to override the Board if it went outside of its mandate, but for the IANA functions I would assume this is only an issue if it meant that ICANN was no longer performing to the standards in the IANA contract. I.e. I don’t see this as directly connected to the NTIA transferring stewardship of IANA – but I do see that it fits into the ICANN accountability discussion. I see this as a bit of a common thread in discussions on the IANA transition – i.e. the “threat” that NTIA will cancel the contract if ICANN does something the community doesn’t like that is unrelated to the IANA function. To me NTIA is ensuring through the IANA contract that the IANA technical functions are performed to the standard expected of the community – nothing more. The NTIA does not have any over-ride/veto powers on the strategic plan., and the US Government is a stakeholder in the ICANN community in the development of the strategic plan like everyone else. This is one of the reasons why the Board recommended that CCWG operate as a separate initiative to look at ways to improve accountability, and ensure that ICANN's strategic plan is in accordance with the wishes of the community. 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 ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.5646 / Virus Database: 4299/9172 - Release Date: 02/24/15 Internal Virus Database is out of date.
Steve,with regard to #1 and #2: separation or backup provider seem to me to be in the „really, really last resort options” range, as indicated earlier with the term „nuclear option”. As I said before, executing a nuclear option has, as far as I know, never led to an improvement of the existing bad situation. So I wonder why your stress tests directly jump to these options, as a failure of (part of) the IANA function should „normally" be fixable by (depending on the cause of the failure) rolling in new hardware, replacing IANA staff (e.g. ad interim by cc and/or g registry staff), replacing ICANN staff and/or replacing the ICANN Board (or part thereof). I can think of no situation in which the use of one, some or all the new powers we propose will not fix the malfunctioning of IANA Best, Roelof From: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: dinsdag 3 maart 2015 03:36 To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>, "ccwg-accountability4@icann.org<mailto:ccwg-accountability4@icann.org>" <ccwg-accountability4@icann.org<mailto:ccwg-accountability4@icann.org>> Subject: [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.
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] 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 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.
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] 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 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
To follow up, this is exactly what Fadi testified at the US Senate Commerce Committee on February 25th, taken directly from the raw transcript of the hearing: Another concrete idea you gave us in your letter is to make sure our affirmation of commitments to the world are enshrined in our bylaws. We are very actively looking at doing that right now, and I believe this is a good idea and I hope our stakeholders will agree with me. These affirmation of commitments, by the way, are very clear that the jurisdiction of ICANN shall remain in the United States of America, and we stand by these. (emphasis added) 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 From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, March 04, 2015 5:29 PM To: 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 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 ________________________________ 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
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] 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 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] 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 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: <mailto:ccwg-accountability4-bounces@icann.org> 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; <mailto:ccwg-accountability4@icann.org> 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 <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - <http://www.avg.com> www.avg.com Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 --- Ce courrier électronique ne contient aucun virus ou logiciel malveillant parce que la protection avast! Antivirus est active. http://www.avast.com
Dear all! As far as I remember this question has been around for years and at least one serious legal study was commissioned to compare the present jurisdiction with "good" alternatives. And, again if I remember well, less than a handful alternatives where considered attractive enough. Just one or two European countries met the conditions. Maybe we should go back and read that document, because there may not be many alternatives out there. Best regards Carlos Raúl Gutiérrez +506 8837 7176 (New Number) Enviado desde mi iPhone
El mar 4, 2015, a las 16:28, Phil Corwin <psc@vlaw-dc.com> escribió:
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] 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 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] 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 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 https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear all and dear Carlos could you please share that study or document with the whole list? thanks a lot Jorge Cancio Von meinem iPhone gesendet Am 05.03.2015 um 00:36 schrieb Carlos Raúl G. <crg@isoc-cr.org<mailto:crg@isoc-cr.org>>: Dear all! As far as I remember this question has been around for years and at least one serious legal study was commissioned to compare the present jurisdiction with "good" alternatives. And, again if I remember well, less than a handful alternatives where considered attractive enough. Just one or two European countries met the conditions. Maybe we should go back and read that document, because there may not be many alternatives out there. Best regards Carlos Raúl Gutiérrez +506 8837 7176 (New Number) Enviado desde mi iPhone El mar 4, 2015, a las 16:28, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> escribió: 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 _______________________________________________ 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 _______________________________________________ Ccwg-accountability4 mailing list Ccwg-accountability4@icann.org<mailto:Ccwg-accountability4@icann.org> https://mm.icann.org/mailman/listinfo/ccwg-accountability4
Dear Jorge, all, I believe one of the studies referred by Carlos might be this one http://archive.icann.org/en/jpa/iic/draft-iic-implementation-26feb09-en.pdf Best regards, León Enviado desde mi iPhone
El mar 4, 2015, a las 11:10 PM, <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> escribió:
Dear all and dear Carlos
could you please share that study or document with the whole list?
thanks a lot
Jorge Cancio
Von meinem iPhone gesendet
Am 05.03.2015 um 00:36 schrieb Carlos Raúl G. <crg@isoc-cr.org<mailto:crg@isoc-cr.org>>:
Dear all!
As far as I remember this question has been around for years and at least one serious legal study was commissioned to compare the present jurisdiction with "good" alternatives. And, again if I remember well, less than a handful alternatives where considered attractive enough. Just one or two European countries met the conditions.
Maybe we should go back and read that document, because there may not be many alternatives out there.
Best regards
Carlos Raúl Gutiérrez +506 8837 7176 (New Number) Enviado desde mi iPhone
El mar 4, 2015, a las 16:28, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> escribió:
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
-----
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Checked by AVG - www.avg.com<http://www.avg.com>
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_______________________________________________ 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 _______________________________________________ Ccwg-accountability4 mailing list Ccwg-accountability4@icann.org<mailto:Ccwg-accountability4@icann.org> https://mm.icann.org/mailman/listinfo/ccwg-accountability4 _______________________________________________ Ccwg-accountability4 mailing list Ccwg-accountability4@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability4
querido Leon thanks so much for this piece of information, which will surely help us to better understand the scope of options on the table regarding this important question, which if I'm not mistaken was put forward by a number of countries at the GAC-Board bilateral in Singapore. Jorge Von meinem iPhone gesendet Am 05.03.2015 um 06:35 schrieb León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>: Dear Jorge, all, I believe one of the studies referred by Carlos might be this one http://archive.icann.org/en/jpa/iic/draft-iic-implementation-26feb09-en.pdf Best regards, León Enviado desde mi iPhone El mar 4, 2015, a las 11:10 PM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> escribió: Dear all and dear Carlos could you please share that study or document with the whole list? thanks a lot Jorge Cancio Von meinem iPhone gesendet Am 05.03.2015 um 00:36 schrieb Carlos Raúl G. <crg@isoc-cr.org<mailto:crg@isoc-cr.org><mailto:crg@isoc-cr.org>>: Dear all! As far as I remember this question has been around for years and at least one serious legal study was commissioned to compare the present jurisdiction with "good" alternatives. And, again if I remember well, less than a handful alternatives where considered attractive enough. Just one or two European countries met the conditions. Maybe we should go back and read that document, because there may not be many alternatives out there. Best regards Carlos Raúl Gutiérrez +506 8837 7176 (New Number) Enviado desde mi iPhone El mar 4, 2015, a las 16:28, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>> escribió: 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> [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><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> [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><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><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><http://www.avg.com> Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org><mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Ccwg-accountability4 mailing list Ccwg-accountability4@icann.org<mailto:Ccwg-accountability4@icann.org><mailto:Ccwg-accountability4@icann.org> https://mm.icann.org/mailman/listinfo/ccwg-accountability4 _______________________________________________ Ccwg-accountability4 mailing list Ccwg-accountability4@icann.org<mailto:Ccwg-accountability4@icann.org> https://mm.icann.org/mailman/listinfo/ccwg-accountability4
Dear all After looking quickly into the document kindly shared by Leon, I have also identified this somewhat older document as quite interesting: http://archive.icann.org/en/psc/corell-24aug06.html (Educational Material to Assist ICANN in Deciding What Status The Corporation Should Aim for as A Private International Entity in Its Host Country) Perhaps our advisors could have a look at it and see whether some of the options can be taken into account and updated? Best regards Jorge Von: Cancio Jorge BAKOM Gesendet: Donnerstag, 5. März 2015 07:24 An: León Felipe Sánchez Ambía Cc: <crg@isoc-cr.org>; acct-staff@icann.org; accountability-cross-community@icann.org; psc@vlaw-dc.com; ccwg-accountability4@icann.org Betreff: Re: [ST-WP] [CCWG-ACCT] RES: Additional Stress Tests to discuss querido Leon thanks so much for this piece of information, which will surely help us to better understand the scope of options on the table regarding this important question, which if I'm not mistaken was put forward by a number of countries at the GAC-Board bilateral in Singapore. Jorge Von meinem iPhone gesendet Am 05.03.2015 um 06:35 schrieb León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>: Dear Jorge, all, I believe one of the studies referred by Carlos might be this one http://archive.icann.org/en/jpa/iic/draft-iic-implementation-26feb09-en.pdf Best regards, León Enviado desde mi iPhone El mar 4, 2015, a las 11:10 PM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> escribió: Dear all and dear Carlos could you please share that study or document with the whole list? thanks a lot Jorge Cancio Von meinem iPhone gesendet Am 05.03.2015 um 00:36 schrieb Carlos Raúl G. <crg@isoc-cr.org<mailto:crg@isoc-cr.org><mailto:crg@isoc-cr.org>>: Dear all! As far as I remember this question has been around for years and at least one serious legal study was commissioned to compare the present jurisdiction with "good" alternatives. And, again if I remember well, less than a handful alternatives where considered attractive enough. Just one or two European countries met the conditions. Maybe we should go back and read that document, because there may not be many alternatives out there. Best regards Carlos Raúl Gutiérrez +506 8837 7176 (New Number) Enviado desde mi iPhone El mar 4, 2015, a las 16:28, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>> escribió: 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> [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><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> [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><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><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><http://www.avg.com> Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org><mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Ccwg-accountability4 mailing list Ccwg-accountability4@icann.org<mailto:Ccwg-accountability4@icann.org><mailto:Ccwg-accountability4@icann.org> https://mm.icann.org/mailman/listinfo/ccwg-accountability4 _______________________________________________ Ccwg-accountability4 mailing list Ccwg-accountability4@icann.org<mailto:Ccwg-accountability4@icann.org> https://mm.icann.org/mailman/listinfo/ccwg-accountability4
Phil, just to make sure, Mr Chehade was under oath, right? el On 2015-03-05 00:28, Phil Corwin wrote: [...]
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.
[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Fadi also testified under oath that ICANN has never been hacked..... On Thu, Mar 5, 2015 at 8:29 AM, Dr Eberhard Lisse <el@lisse.na> wrote:
Phil,
just to make sure, Mr Chehade was under oath, right?
el
On 2015-03-05 00:28, Phil Corwin wrote: [...]
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.
[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
To be fair, and I was at the hearing, he was referring to the IANA systems, not ICANN in general when talking about never being “hacked”. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Carrie Devorah Sent: Thursday, March 5, 2015 8:51 AM To: el@lisse.na Cc: directors@omadhina.net; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Fadi also testified under oath that ICANN has never been hacked..... On Thu, Mar 5, 2015 at 8:29 AM, Dr Eberhard Lisse <el@lisse.na<mailto:el@lisse.na>> wrote: Phil, just to make sure, Mr Chehade was under oath, right? el On 2015-03-05 00:28, Phil Corwin wrote: [...]
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.
[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA<mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733<tel:%2B264%2081%20124%206733> (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ 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 -- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
There was no oath administered, but for purposes of this discussion I believe that is irrelevant. 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] On Behalf Of Dr Eberhard Lisse Sent: Thursday, March 05, 2015 8:29 AM To: accountability-cross-community@icann.org Cc: directors@omadhina.net Subject: Re: [CCWG-ACCT] RES: [ST-WP] Additional Stress Tests to discuss Phil, just to make sure, Mr Chehade was under oath, right? el On 2015-03-05 00:28, Phil Corwin wrote: [...]
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.
[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list 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 Version: 2015.0.5751 / Virus Database: 4299/9218 - Release Date: 03/03/15
participants (13)
-
"Carlos Raúl G." -
Bruce Tonkin -
Carrie Devorah -
Dr Eberhard Lisse -
Jeff Neuman -
Jonathan Zuck -
Jorge.Cancio＠bakom.admin.ch -
León Felipe Sánchez Ambía -
Pedro Ivo Ferraz da Silva -
Phil Corwin -
Roelof Meijer -
Steve DelBianco -
Tijani BEN JEMAA