Thanks Stephanie, This looks good to me in that I think it reflects the original intention of the reference, but with clearer focus. I'd like to hear what others think. All, I'd appreciate any additional comments on the draft by 18.00 UTC so that I can circulate a new version for tomorrow's call, when I also hope to have a compromise wording on section g.ii. (By the way: would anyone have any objections to me changing the paragraph style to number/letter or number/Roman numeral? Paragraphs marked i.i look rather odd as Olivier pointed out last night!) Cheers Martin From: Duchesneau, Stephanie [mailto:Stephanie.Duchesneau@neustar.us] Sent: 03 March 2015 19:15 To: Martin Boyle; cwg-stewardship@icann.org Subject: RE: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Hi Martin and all, Here is my suggested language revision from today's call. Stephanie Stephanie Duchesneau Neustar, Inc. / Public Policy Manager 1775 Pennsylvania Avenue NW, 4th Floor, Washington, DC 20006 Office: +1.202.533.2623 Mobile: +1.703.731.2040 Fax: +1.202.533.2623 / www.neustar.biz<http://www.neustar.biz/> ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Martin Boyle Sent: Tuesday, March 03, 2015 4:09 AM To: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Colleagues, My apologies, but following the Christmas break I failed to progress this discussion. I now attach a revised draft, still with a major outstanding issue in g. (page 2). There are two variants for g.ii. One simply reduces the previous paragraph to read "For ccTLDs, respect national sovereignty;" at the request of the GAC. The other is more closely based on, but shortens, the previous text: "For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries." The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines: 1. I have deleted the section heading "Introduction": there are no other section headings, so this appears to be superfluous. 2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC. 3. Accountability & transparency (e.): a. Paragraph i: two edits that appear to have general agreement. b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around. c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller. d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days. 4. Service levels (f.): a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations). b. Paragraph iii: Previously a stand-alone point. 5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.). 6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed. 7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion. 8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function).

Kurt - Why did you suggest the following language in h.iii: "No additional requirements for prompt delivery of IANA services should be imposed unless they are directly and demonstrably linked to global security, stability and resilience of the DNS." Shouldn't that be considered by the applicable design team. For example, it might be helpful to consider an expedited procedure in certain cases where a TLD needs to be re-delegated to minimize the impact of downtime for registrants in the TLD. For this example, would that be a stability issue? If so, the language might be okay. Regardless, it seems to me that the design team should consider this before making it a principle. Chuck From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Maarten Simon Sent: Wednesday, March 04, 2015 7:45 AM To: 'Martin Boyle'; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Hi Martin, Hereby a few comments/suggestions. Best, Martin From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Martin Boyle Sent: woensdag 4 maart 2015 12:44 To: Duchesneau, Stephanie; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Importance: High Thanks Stephanie, This looks good to me in that I think it reflects the original intention of the reference, but with clearer focus. I'd like to hear what others think. All, I'd appreciate any additional comments on the draft by 18.00 UTC so that I can circulate a new version for tomorrow's call, when I also hope to have a compromise wording on section g.ii. (By the way: would anyone have any objections to me changing the paragraph style to number/letter or number/Roman numeral? Paragraphs marked i.i look rather odd as Olivier pointed out last night!) Cheers Martin From: Duchesneau, Stephanie [mailto:Stephanie.Duchesneau@neustar.us] Sent: 03 March 2015 19:15 To: Martin Boyle; cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: RE: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Hi Martin and all, Here is my suggested language revision from today's call. Stephanie Stephanie Duchesneau Neustar, Inc. / Public Policy Manager 1775 Pennsylvania Avenue NW, 4th Floor, Washington, DC 20006 Office: +1.202.533.2623 Mobile: +1.703.731.2040 Fax: +1.202.533.2623 / www.neustar.biz<http://www.neustar.biz/> ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Martin Boyle Sent: Tuesday, March 03, 2015 4:09 AM To: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Colleagues, My apologies, but following the Christmas break I failed to progress this discussion. I now attach a revised draft, still with a major outstanding issue in g. (page 2). There are two variants for g.ii. One simply reduces the previous paragraph to read "For ccTLDs, respect national sovereignty;" at the request of the GAC. The other is more closely based on, but shortens, the previous text: "For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries." The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines: 1. I have deleted the section heading "Introduction": there are no other section headings, so this appears to be superfluous. 2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC. 3. Accountability & transparency (e.): a. Paragraph i: two edits that appear to have general agreement. b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around. c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller. d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days. 4. Service levels (f.): a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations). b. Paragraph iii: Previously a stand-alone point. 5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.). 6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed. 7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion. 8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function).

Replying to Chuck (and Martin): Martin is correct. I made the comment before the existence of design teams were the twinkle in anyone's eye. When reviewing an early draft of the principles and seeing this reservation for the ccTLDs, I thought there should be a similar principle for gTLDs: to limit unilaterally proposed changes.My recollection is that this principle comes from early days that IANA services could not be predicated on payment of fees, signing an ICANN contract, joining the ccNSO or other actions. My thinking in applying this to gTLDs is that IANA services can never be withheld due to contractual disputes or any other reason (except for the paramount SSR concerns). I think it can be stated as a principle based on the historical context and is a more powerful protection for registry operators when stated as a principle. That was my thinking. Kurt On Mar 6, 2015, at 3:03 AM, Martin Boyle <Martin.Boyle@nominet.org.uk> wrote:

Hi Chuck,

Without wanting to pre-empt Kurt’s response, I have two general comments:

1. A principle that depends on what solution you work up is not a principle. If this is really like that, we should just delete it here and now. 2. Kurt originally proposed this (back before Christmas if I remember correctly) as a gTLD equivalent of the ccTLD case in the previous clause (h.ii, now 5.ii). I recognise the differences between ccTLDs and gTLDs – not least the existence of any contractual relationship between a TLD and ICANN that might change the risk of the IANA functions operator trying to impose additional conditions on the registry. However, I do not see this as an unreasonable principle. Wouldn’t gTLDs want to limit potential for the IANA functions operator to try to impose arbitrary decisions in the case of changing contractual relationships between the various actors?

Best

Martin

From: Gomes, Chuck [mailto:cgomes@verisign.com] Sent: 06 March 2015 10:47 To: Maarten Simon; Martin Boyle; cwg-stewardship@icann.org Subject: RE: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Kurt – Why did you suggest the following language in h.iii: “No additional requirements for prompt delivery of IANA services should be imposed unless they are directly and demonstrably linked to global security, stability and resilience of the DNS.” Shouldn’t that be considered by the applicable design team. For example, it might be helpful to consider an expedited procedure in certain cases where a TLD needs to be re-delegated to minimize the impact of downtime for registrants in the TLD. For this example, would that be a stability issue? If so, the language might be okay. Regardless, it seems to me that the design team should consider this before making it a principle.

Chuck

From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Maarten Simon Sent: Wednesday, March 04, 2015 7:45 AM To: 'Martin Boyle'; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Hi Martin,

Hereby a few comments/suggestions.

Best,

Martin

From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Martin Boyle Sent: woensdag 4 maart 2015 12:44 To: Duchesneau, Stephanie; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Importance: High

Thanks Stephanie,

This looks good to me in that I think it reflects the original intention of the reference, but with clearer focus. I’d like to hear what others think.

All,

I’d appreciate any additional comments on the draft by 18.00 UTC so that I can circulate a new version for tomorrow’s call, when I also hope to have a compromise wording on section g.ii.

(By the way: would anyone have any objections to me changing the paragraph style to number/letter or number/Roman numeral? Paragraphs marked i.i look rather odd as Olivier pointed out last night!)

Cheers

Martin

From: Duchesneau, Stephanie [mailto:Stephanie.Duchesneau@neustar.us] Sent: 03 March 2015 19:15 To: Martin Boyle; cwg-stewardship@icann.org Subject: RE: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Hi Martin and all,

Here is my suggested language revision from today’s call.

Stephanie Stephanie Duchesneau Neustar, Inc. / Public Policy Manager 1775 Pennsylvania Avenue NW, 4th Floor, Washington, DC 20006 Office: +1.202.533.2623 Mobile: +1.703.731.2040 Fax: +1.202.533.2623 / www.neustar.biz The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.

From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Martin Boyle Sent: Tuesday, March 03, 2015 4:09 AM To: cwg-stewardship@icann.org Subject: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Colleagues,

My apologies, but following the Christmas break I failed to progress this discussion.

I now attach a revised draft, still with a major outstanding issue in g. (page 2).

There are two variants for g.ii. One simply reduces the previous paragraph to read “For ccTLDs, respect national sovereignty;” at the request of the GAC. The other is more closely based on, but shortens, the previous text: “For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries.”

The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines:

1. I have deleted the section heading “Introduction”: there are no other section headings, so this appears to be superfluous.

2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC.

3. Accountability & transparency (e.):

a. Paragraph i: two edits that appear to have general agreement.

b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around.

c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller.

d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days.

4. Service levels (f.):

a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations).

b. Paragraph iii: Previously a stand-alone point.

5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.).

6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed.

7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion.

8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function). _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

Martin i. I think you need to strike the part of e iii where you say "Note: this does not pre-suppose any model for separation of the policy and IANA roles. The current contract already requires such separation); First, the second sentence it is factually inaccurate, or at least contested, to say that the current contract requires it. As the results of the CWG survey show, the group has different views on whether the current contract provides for adequate separation. Second, NO principle presupposes any model, indeed the models are supposed to conform to the principles, so making this disclaimer about one specific principle is tendentious. --MM From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Duchesneau, Stephanie Sent: Tuesday, March 3, 2015 2:15 PM To: 'Martin Boyle'; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Hi Martin and all, Here is my suggested language revision from today's call. Stephanie Stephanie Duchesneau Neustar, Inc. / Public Policy Manager 1775 Pennsylvania Avenue NW, 4th Floor, Washington, DC 20006 Office: +1.202.533.2623 Mobile: +1.703.731.2040 Fax: +1.202.533.2623 / www.neustar.biz<http://www.neustar.biz/> ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Martin Boyle Sent: Tuesday, March 03, 2015 4:09 AM To: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Colleagues, My apologies, but following the Christmas break I failed to progress this discussion. I now attach a revised draft, still with a major outstanding issue in g. (page 2). There are two variants for g.ii. One simply reduces the previous paragraph to read "For ccTLDs, respect national sovereignty;" at the request of the GAC. The other is more closely based on, but shortens, the previous text: "For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries." The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines: 1. I have deleted the section heading "Introduction": there are no other section headings, so this appears to be superfluous. 2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC. 3. Accountability & transparency (e.): a. Paragraph i: two edits that appear to have general agreement. b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around. c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller. d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days. 4. Service levels (f.): a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations). b. Paragraph iii: Previously a stand-alone point. 5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.). 6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed. 7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion. 8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function).

Martin thanks for your message. We can change Law by Regulation (that including if i’m correct UK and common law system). Not all the ccTLDs are related to one Authority specific in all the countries so we must have the most open option for all. Yours, Erick

El 4/3/2015, a las 13:19, Martin Boyle <Martin.Boyle@nominet.org.uk> escribió:

Thanks Erick,

In essence you are proposing changing the words “policy authority” to “laws related to each ccTLD”.

I would have a concern with this in that .uk policy is developed through our own national process rooted in the local community and working in a multi-stakeholder process (and the same is the case for many other ccTLDs). Our policies are not written in law, but are based on a national discussion leading to general consensus.

What I like about the current formulation is that this policy authority cannot be overturned by a zealous Californian-based organisation with its own idea of what is the right way to do things. Your wording would seem to open this as an option because our policies are not laws (although they would not conflict with the UK’s legal requirements).

I’d welcome your thoughts, and any further explanation of your proposal. Could you see an alternative that ensured the safeguards that are in the current text?

Thanks

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 11:38 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

HI Martin,

I have reviewed your document and thank you for inviting comments on it.

i would like to suggest a change in clause h.ii

"ii. For ccTLDs: the IANA Functions Operator should provide a service without requiring a contract and should respect the diversity of agreements and arrangements in place for ccTLDs. In particular, the nationals laws related to each ccTLD should be respected and no additional requirements should be imposed unless they are directly and demonstrably linked to global security, stability, resilience of the DNS and existing registrants use of the ccTLD."

Yours, Erick

Erick

El 3/3/2015, a las 10:09, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Colleagues,

My apologies, but following the Christmas break I failed to progress this discussion.

I now attach a revised draft, still with a major outstanding issue in g. (page 2).

There are two variants for g.ii. One simply reduces the previous paragraph to read “For ccTLDs, respect national sovereignty;” at the request of the GAC. The other is more closely based on, but shortens, the previous text: “For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries.”

The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines:

1. I have deleted the section heading “Introduction”: there are no other section headings, so this appears to be superfluous.

2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC.

3. Accountability & transparency (e.):

a. Paragraph i: two edits that appear to have general agreement.

b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around.

c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller.

d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days.

4. Service levels (f.):

a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations).

b. Paragraph iii: Previously a stand-alone point.

5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.).

6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed.

7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion.

8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function). <Draft of Principles - updated 3 March.docx>_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship <https://mm.icann.org/mailman/listinfo/cwg-stewardship>

Again talking about “regulation" and not “authority” will be more open to include more cctlds, we must respect that diversity of legal systems and also origin of ccTLDs (governmental, civil society, private sector, academia, ) About the second point, which is your specific proposal against my proposal? Erick

El 4/3/2015, a las 15:02, Martin Boyle <Martin.Boyle@nominet.org.uk> escribió:

Erick,

Not really: we are not regulated, we devise our own policies which are not laws or regulations (we are not a regulator either) and we still do not want the IANA functions operator feeling that it has the right to impose rules on us.

I’m sorry: I appear to have missed a second change in your edits: the addition of “existing registrants’ use of the ccTLD.” I have similar problems with this, I’m afraid: I do not think that it is up to the IANA functions operator to decide what is best for .uk domain name holders. If we fail to look after registrants’ rights, we are going to see court action in the UK or lose market share in a very competitive domain name market. Similarly, if we let or encourage malicious behaviour in .uk we will fall foul of UK laws or suffer reputational damage and see (again) a loss of market share.

There might be a principle associated with protecting registrants, but I’m not sure it ever belongs in an IANA stewardship transition and certainly not in any increase of power for the IANA functions operator.

Best

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 12:35 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Martin

thanks for your message. We can change Law by Regulation (that including if i’m correct UK and common law system).

Not all the ccTLDs are related to one Authority specific in all the countries so we must have the most open option for all.

Yours,

Erick

El 4/3/2015, a las 13:19, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Thanks Erick,

In essence you are proposing changing the words “policy authority” to “laws related to each ccTLD”.

I would have a concern with this in that .uk policy is developed through our own national process rooted in the local community and working in a multi-stakeholder process (and the same is the case for many other ccTLDs). Our policies are not written in law, but are based on a national discussion leading to general consensus.

What I like about the current formulation is that this policy authority cannot be overturned by a zealous Californian-based organisation with its own idea of what is the right way to do things. Your wording would seem to open this as an option because our policies are not laws (although they would not conflict with the UK’s legal requirements).

I’d welcome your thoughts, and any further explanation of your proposal. Could you see an alternative that ensured the safeguards that are in the current text?

Thanks

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 11:38 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

HI Martin,

I have reviewed your document and thank you for inviting comments on it.

i would like to suggest a change in clause h.ii

"ii. For ccTLDs: the IANA Functions Operator should provide a service without requiring a contract and should respect the diversity of agreements and arrangements in place for ccTLDs. In particular, the nationals laws related to each ccTLD should be respected and no additional requirements should be imposed unless they are directly and demonstrably linked to global security, stability, resilience of the DNS and existing registrants use of the ccTLD."

Yours, Erick

Erick

El 3/3/2015, a las 10:09, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Colleagues,

My apologies, but following the Christmas break I failed to progress this discussion.

I now attach a revised draft, still with a major outstanding issue in g. (page 2).

There are two variants for g.ii. One simply reduces the previous paragraph to read “For ccTLDs, respect national sovereignty;” at the request of the GAC. The other is more closely based on, but shortens, the previous text: “For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries.”

The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines:

1. I have deleted the section heading “Introduction”: there are no other section headings, so this appears to be superfluous.

2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC.

3. Accountability & transparency (e.):

a. Paragraph i: two edits that appear to have general agreement.

b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around.

c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller.

d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days.

4. Service levels (f.):

a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations).

b. Paragraph iii: Previously a stand-alone point.

5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.).

6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed.

7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion.

8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function). <Draft of Principles - updated 3 March.docx>_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship <https://mm.icann.org/mailman/listinfo/cwg-stewardship>

Martin First Point, we have a situation, some cases for law/regulation/policies and other is authorithy (some thing that could be telecom because internet is part of telecom world, somes intellectual property, others foreign affairs, other egov offices in others no specific authority ) So i suggest open option (for diversity in legal system and origin of ccTLDs and relation with governments): "In particular, the nationals regulations related to each ccTLD” <- if they haves laws, perfect. If they have authority that authority was created by a law / regulation . When we finish this point we advance to the second point. Erick

El 4/3/2015, a las 18:00, Martin Boyle <Martin.Boyle@nominet.org.uk> escribió:

Erick,

The national policy authority would either be the registry should there not be regulation or the regulator (or government) if there was. In practice in this latter case responsibility is likely to be shared as there will be some areas where one or the other had specific responsibility.

So the current wording does reflect diversity of legal systems. My concern is that yours focuses only on regulated or law-based models. And as I mentioned previously, it will not be acceptable to allow the IANA functions operator to have a say over .uk just because the UK government does not see its vocation to run or regulate a TLD.

For the second point, I’m sorry if I was not clear. I do not want to give the IANA functions operator any role over .uk registrants. If there is an issue, this would need to be resolved under UK law.

Thanks

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 14:13 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Again

talking about “regulation" and not “authority” will be more open to include more cctlds, we must respect that diversity of legal systems and also origin of ccTLDs (governmental, civil society, private sector, academia, )

About the second point, which is your specific proposal against my proposal?

Erick

El 4/3/2015, a las 15:02, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Erick,

Not really: we are not regulated, we devise our own policies which are not laws or regulations (we are not a regulator either) and we still do not want the IANA functions operator feeling that it has the right to impose rules on us.

I’m sorry: I appear to have missed a second change in your edits: the addition of “existing registrants’ use of the ccTLD.” I have similar problems with this, I’m afraid: I do not think that it is up to the IANA functions operator to decide what is best for .uk domain name holders. If we fail to look after registrants’ rights, we are going to see court action in the UK or lose market share in a very competitive domain name market. Similarly, if we let or encourage malicious behaviour in .uk we will fall foul of UK laws or suffer reputational damage and see (again) a loss of market share.

There might be a principle associated with protecting registrants, but I’m not sure it ever belongs in an IANA stewardship transition and certainly not in any increase of power for the IANA functions operator.

Best

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 12:35 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Martin

thanks for your message. We can change Law by Regulation (that including if i’m correct UK and common law system).

Not all the ccTLDs are related to one Authority specific in all the countries so we must have the most open option for all.

Yours,

Erick

El 4/3/2015, a las 13:19, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Thanks Erick,

In essence you are proposing changing the words “policy authority” to “laws related to each ccTLD”.

I would have a concern with this in that .uk policy is developed through our own national process rooted in the local community and working in a multi-stakeholder process (and the same is the case for many other ccTLDs). Our policies are not written in law, but are based on a national discussion leading to general consensus.

What I like about the current formulation is that this policy authority cannot be overturned by a zealous Californian-based organisation with its own idea of what is the right way to do things. Your wording would seem to open this as an option because our policies are not laws (although they would not conflict with the UK’s legal requirements).

I’d welcome your thoughts, and any further explanation of your proposal. Could you see an alternative that ensured the safeguards that are in the current text?

Thanks

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 11:38 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

HI Martin,

I have reviewed your document and thank you for inviting comments on it.

i would like to suggest a change in clause h.ii

"ii. For ccTLDs: the IANA Functions Operator should provide a service without requiring a contract and should respect the diversity of agreements and arrangements in place for ccTLDs. In particular, the nationals laws related to each ccTLD should be respected and no additional requirements should be imposed unless they are directly and demonstrably linked to global security, stability, resilience of the DNS and existing registrants use of the ccTLD."

Yours, Erick

Erick

El 3/3/2015, a las 10:09, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Colleagues,

My apologies, but following the Christmas break I failed to progress this discussion.

I now attach a revised draft, still with a major outstanding issue in g. (page 2).

There are two variants for g.ii. One simply reduces the previous paragraph to read “For ccTLDs, respect national sovereignty;” at the request of the GAC. The other is more closely based on, but shortens, the previous text: “For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries.”

The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines:

1. I have deleted the section heading “Introduction”: there are no other section headings, so this appears to be superfluous.

2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC.

3. Accountability & transparency (e.):

a. Paragraph i: two edits that appear to have general agreement.

b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around.

c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller.

d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days.

4. Service levels (f.):

a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations).

b. Paragraph iii: Previously a stand-alone point.

5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.).

6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed.

7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion.

8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function). <Draft of Principles - updated 3 March.docx>_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship <https://mm.icann.org/mailman/listinfo/cwg-stewardship>

Martin the reason to our disagreement is easy (and with this email i understand better). 1. For you: "In particular, the national policy authority should be respected and no additional … ” (your original phrase) “policy authority” means ccTLD administrator 2. For me: "In particular, the national policy authority should be respected and no additional ...” (in the context of the parragraph) means Governmental Authority As i assume that your paragraph is in the second option, i’m not agree with that option and for that reason i proposed put the relation with local laws for each ccTLD. With your message i understand your position is in option 1, so i suggest change the words or be clear when you said “policy authority” and said “cctld administrator” if that is the situation. Yours, Erick In particular, the nationals laws related to each ccTLD should be respected and no additional requirements For you the word: national

El 4/3/2015, a las 19:04, Martin Boyle <Martin.Boyle@nominet.org.uk> escribió:

Sorry, Erick, I still do not agree. And I fail to see why national policy authority (which could be the registry, with or without a legal base, as well as your preferred legal based route) is an issue for you. Why do you want to give the IANA functions operator a say over a ccTLD that does not have a formal legal agreement?

We have authority over .uk. There is no legal basis for this, just that we set up a not-for-profit company to run the .uk domain name space. We have company law, we have various criminal and competition laws we have to abide by, just like any other organisation. But we do not need a government decree to allow us to do this.

I’m happy for you to devise an additional clause that takes care of the issues that give you concerns, because I’m very clearly not understanding the subtle point you are making – sorry. But this clause is all about the IANA functions operator stepping beyond its remit and trying to impose requirements on ccTLDs and as such it is quite a major issue and will definitely be a redline for many European ccTLDs and their governments (who equally do not want extraterritoriality impacting their national environment.

Hope this helps

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 17:11 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Martin

First Point, we have a situation, some cases for law/regulation/policies and other is authorithy (some thing that could be telecom because internet is part of telecom world, somes intellectual property, others foreign affairs, other egov offices in others no specific authority )

So i suggest open option (for diversity in legal system and origin of ccTLDs and relation with governments): "In particular, the nationals regulations related to each ccTLD” <- if they haves laws, perfect. If they have authority that authority was created by a law / regulation .

When we finish this point we advance to the second point.

Erick

El 4/3/2015, a las 18:00, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Erick,

The national policy authority would either be the registry should there not be regulation or the regulator (or government) if there was. In practice in this latter case responsibility is likely to be shared as there will be some areas where one or the other had specific responsibility.

So the current wording does reflect diversity of legal systems. My concern is that yours focuses only on regulated or law-based models. And as I mentioned previously, it will not be acceptable to allow the IANA functions operator to have a say over .uk just because the UK government does not see its vocation to run or regulate a TLD.

For the second point, I’m sorry if I was not clear. I do not want to give the IANA functions operator any role over .uk registrants. If there is an issue, this would need to be resolved under UK law.

Thanks

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 14:13 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Again

talking about “regulation" and not “authority” will be more open to include more cctlds, we must respect that diversity of legal systems and also origin of ccTLDs (governmental, civil society, private sector, academia, )

About the second point, which is your specific proposal against my proposal?

Erick

El 4/3/2015, a las 15:02, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Erick,

Not really: we are not regulated, we devise our own policies which are not laws or regulations (we are not a regulator either) and we still do not want the IANA functions operator feeling that it has the right to impose rules on us.

I’m sorry: I appear to have missed a second change in your edits: the addition of “existing registrants’ use of the ccTLD.” I have similar problems with this, I’m afraid: I do not think that it is up to the IANA functions operator to decide what is best for .uk domain name holders. If we fail to look after registrants’ rights, we are going to see court action in the UK or lose market share in a very competitive domain name market. Similarly, if we let or encourage malicious behaviour in .uk we will fall foul of UK laws or suffer reputational damage and see (again) a loss of market share.

There might be a principle associated with protecting registrants, but I’m not sure it ever belongs in an IANA stewardship transition and certainly not in any increase of power for the IANA functions operator.

Best

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 12:35 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Martin

thanks for your message. We can change Law by Regulation (that including if i’m correct UK and common law system).

Not all the ccTLDs are related to one Authority specific in all the countries so we must have the most open option for all.

Yours,

Erick

El 4/3/2015, a las 13:19, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Thanks Erick,

In essence you are proposing changing the words “policy authority” to “laws related to each ccTLD”.

I would have a concern with this in that .uk policy is developed through our own national process rooted in the local community and working in a multi-stakeholder process (and the same is the case for many other ccTLDs). Our policies are not written in law, but are based on a national discussion leading to general consensus.

What I like about the current formulation is that this policy authority cannot be overturned by a zealous Californian-based organisation with its own idea of what is the right way to do things. Your wording would seem to open this as an option because our policies are not laws (although they would not conflict with the UK’s legal requirements).

I’d welcome your thoughts, and any further explanation of your proposal. Could you see an alternative that ensured the safeguards that are in the current text?

Thanks

Martin

From: Erick Iriarte [mailto:eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>] Sent: 04 March 2015 11:38 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

HI Martin,

I have reviewed your document and thank you for inviting comments on it.

i would like to suggest a change in clause h.ii

"ii. For ccTLDs: the IANA Functions Operator should provide a service without requiring a contract and should respect the diversity of agreements and arrangements in place for ccTLDs. In particular, the nationals laws related to each ccTLD should be respected and no additional requirements should be imposed unless they are directly and demonstrably linked to global security, stability, resilience of the DNS and existing registrants use of the ccTLD."

Yours, Erick

Erick

El 3/3/2015, a las 10:09, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió:

Colleagues,

My apologies, but following the Christmas break I failed to progress this discussion.

I now attach a revised draft, still with a major outstanding issue in g. (page 2).

There are two variants for g.ii. One simply reduces the previous paragraph to read “For ccTLDs, respect national sovereignty;” at the request of the GAC. The other is more closely based on, but shortens, the previous text: “For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries.”

The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines:

1. I have deleted the section heading “Introduction”: there are no other section headings, so this appears to be superfluous.

2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC.

3. Accountability & transparency (e.):

a. Paragraph i: two edits that appear to have general agreement.

b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around.

c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller.

d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days.

4. Service levels (f.):

a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations).

b. Paragraph iii: Previously a stand-alone point.

5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.).

6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed.

7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion.

8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function). <Draft of Principles - updated 3 March.docx>_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship <https://mm.icann.org/mailman/listinfo/cwg-stewardship>

Erick Iriarte Área de Derecho de Nuevas Tecnologias IRIARTE & ASOCIADOS Dirección: Miró Quesada 191, of. 510, Lima 01, Perú Telefax: (+511) 2035400 Sitio web: iriartelaw.com Twitter: @ialaw Facebook: facebook.com/ialaw Por favor antes de imprimir piense en nuestro medio ambiente, una hoja puede hacer la diferencia en un bosque. Please, before printing, think of our environment, a leaf can make a difference in a forest. Declaracion de Confidencialidad El contenido de este mensaje de correo electronico y de sus archivos adjuntos esta(n) dirigido(s) exclusivamente a el(los) destinatario(s) del mismo. Adicionalmente, este mensaje y su contenido pueden ser privilegiados y estar cubiertos por la reserva profesional entre abogado y cliente. Si usted no es el destinatario indicado, o si este mensaje le ha sido enviado por error, queda advertido en el sentido de no leer, divulgar, reproducir, distribuir, diseminar o utilizar este mensaje en forma alguna. La entrega de este mensaje a cualquier persona diferente del(de los) destinatario(s) a quien(es) se ha dirigido no constituye una renuncia de privilegios o confidencialidad. Si usted recibe este mensaje por error, por favor advierta al remitente mediante correo de respuesta; adicionalmente le solicitamos que inmediatamente proceda a suprimir este mensaje y sus archivos adjuntos, si los hubiere. Statement of Confidentiality The contents of this e-mail message and its attachments are intended solely for the addressee(s) hereof. In addition, this e-mail transmission may be confidential and it may be subject to privilege protecting communications between attorneys or solicitors and their clients. If you are not the named addressee, or if this message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate or otherwise use this e-mail. Delivery of this message to any person other than the intended recipient(s) is not intended in any way to waive privilege or confidentiality. If you have received this transmission in error, please alert the sender by reply e-mail; we also request that you immediately delete this message and its attachments, if any. Please, before printing, think of our environment, a leaf can make a difference in a forest.

I think that still begs the question of what "policy authority" means or refers to. I suggest we either define it in some fashion (eg, a parenthetical with examples) or use a different term altogether. Maybe that term has a standard meaning in some circles, but elsewhere its meaning is unclear. Greg On Friday, March 6, 2015, Gomes, Chuck <cgomes@verisign.com> wrote:

Would it work to say “policy authority or ccTLD administrator as applicable”?

Chuck

*From:* cwg-stewardship-bounces@icann.org <javascript:_e(%7B%7D,'cvml','cwg-stewardship-bounces@icann.org');> [mailto:cwg-stewardship-bounces@icann.org <javascript:_e(%7B%7D,'cvml','cwg-stewardship-bounces@icann.org');>] *On Behalf Of *Erick Iriarte *Sent:* Wednesday, March 04, 2015 1:27 PM *To:* Martin Boyle *Cc:* CWG Stewardship *Subject:* Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Martin

the reason to our disagreement is easy (and with this email i understand better).

1. For you: "In particular, the national policy authority should be respected and no additional … ” (your original phrase) “policy authority” means ccTLD administrator

2. For me: "In particular, the national policy authority should be respected and no additional ...” (in the context of the parragraph) means Governmental Authority

As i assume that your paragraph is in the second option, i’m not agree with that option and for that reason i proposed put the relation with local laws for each ccTLD.

With your message i understand your position is in option 1, so i suggest change the words or be clear when you said “policy authority” and said “cctld administrator” if that is the situation.

Yours,

Erick

In particular, the nationals laws related to each ccTLD should be respected and no additional requirements

For you the word: national

El 4/3/2015, a las 19:04, Martin Boyle <Martin.Boyle@nominet.org.uk <javascript:_e(%7B%7D,'cvml','Martin.Boyle@nominet.org.uk');>> escribió:

Sorry, Erick, I still do not agree. And I fail to see why national policy authority (which could be the registry, with or without a legal base, as well as your preferred legal based route) is an issue for you. Why do you want to give the IANA functions operator a say over a ccTLD that does not have a formal legal agreement?

We have authority over .uk. There is no legal basis for this, just that we set up a not-for-profit company to run the .uk domain name space. We have company law, we have various criminal and competition laws we have to abide by, just like any other organisation. But we do not need a government decree to allow us to do this.

I’m happy for you to devise an additional clause that takes care of the issues that give you concerns, because I’m very clearly not understanding the subtle point you are making – sorry. But this clause is all about the IANA functions operator stepping beyond its remit and trying to impose requirements on ccTLDs and as such it is quite a major issue and will definitely be a redline for many European ccTLDs and their governments (who equally do not want extraterritoriality impacting their national environment.

Hope this helps

Martin

*From:* Erick Iriarte [mailto:eiriarte@iriartelaw.com <javascript:_e(%7B%7D,'cvml','eiriarte@iriartelaw.com');>] *Sent:* 04 March 2015 17:11 *To:* Martin Boyle *Cc:* CWG Stewardship *Subject:* Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Martin

First Point, we have a situation, some cases for law/regulation/policies and other is authorithy (some thing that could be telecom because internet is part of telecom world, somes intellectual property, others foreign affairs, other egov offices in others no specific authority )

So i suggest open option (for diversity in legal system and origin of ccTLDs and relation with governments): "In particular, the nationals regulations related to each ccTLD” <- if they haves laws, perfect. If they have authority that authority was created by a law / regulation .

When we finish this point we advance to the second point.

Erick

El 4/3/2015, a las 18:00, Martin Boyle <Martin.Boyle@nominet.org.uk <javascript:_e(%7B%7D,'cvml','Martin.Boyle@nominet.org.uk');>> escribió:

Erick,

The national policy authority would either be the registry should there not be regulation or the regulator (or government) if there was. In practice in this latter case responsibility is likely to be shared as there will be some areas where one or the other had specific responsibility.

So the current wording does reflect diversity of legal systems. My concern is that yours focuses only on regulated or law-based models. And as I mentioned previously, it will not be acceptable to allow the IANA functions operator to have a say over .uk just because the UK government does not see its vocation to run or regulate a TLD.

For the second point, I’m sorry if I was not clear. I do not want to give the IANA functions operator any role over .uk registrants. If there is an issue, this would need to be resolved under UK law.

Thanks

Martin

*From:* Erick Iriarte [mailto:eiriarte@iriartelaw.com <javascript:_e(%7B%7D,'cvml','eiriarte@iriartelaw.com');>] *Sent:* 04 March 2015 14:13 *To:* Martin Boyle *Cc:* CWG Stewardship *Subject:* Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Again

talking about “regulation" and not “authority” will be more open to include more cctlds, we must respect that diversity of legal systems and also origin of ccTLDs (governmental, civil society, private sector, academia, )

About the second point, which is your specific proposal against my proposal?

Erick

El 4/3/2015, a las 15:02, Martin Boyle <Martin.Boyle@nominet.org.uk <javascript:_e(%7B%7D,'cvml','Martin.Boyle@nominet.org.uk');>> escribió:

Erick,

Not really: we are not regulated, we devise our own policies which are not laws or regulations (we are not a regulator either) and we still do not want the IANA functions operator feeling that it has the right to impose rules on us.

I’m sorry: I appear to have missed a second change in your edits: the addition of “existing registrants’ use of the ccTLD.” I have similar problems with this, I’m afraid: I do not think that it is up to the IANA functions operator to decide what is best for .uk domain name holders. If we fail to look after registrants’ rights, we are going to see court action in the UK or lose market share in a very competitive domain name market. Similarly, if we let or encourage malicious behaviour in .uk we will fall foul of UK laws or suffer reputational damage and see (again) a loss of market share.

There might be a principle associated with protecting registrants, but I’m not sure it ever belongs in an IANA stewardship transition and certainly not in any increase of power for the IANA functions operator.

Best

Martin

*From:* Erick Iriarte [mailto:eiriarte@iriartelaw.com <javascript:_e(%7B%7D,'cvml','eiriarte@iriartelaw.com');>] *Sent:* 04 March 2015 12:35 *To:* Martin Boyle *Cc:* CWG Stewardship *Subject:* Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

Martin

thanks for your message. We can change Law by Regulation (that including if i’m correct UK and common law system).

Not all the ccTLDs are related to one Authority specific in all the countries so we must have the most open option for all.

Yours,

Erick

El 4/3/2015, a las 13:19, Martin Boyle <Martin.Boyle@nominet.org.uk <javascript:_e(%7B%7D,'cvml','Martin.Boyle@nominet.org.uk');>> escribió:

Thanks Erick,

In essence you are proposing changing the words “policy authority” to “laws related to each ccTLD”.

I would have a concern with this in that .uk policy is developed through our own national process rooted in the local community and working in a multi-stakeholder process (and the same is the case for many other ccTLDs). Our policies are not written in law, but are based on a national discussion leading to general consensus.

What I like about the current formulation is that this policy authority cannot be overturned by a zealous Californian-based organisation with its own idea of what is the right way to do things. Your wording would seem to open this as an option because our policies are not laws (although they would not conflict with the UK’s legal requirements).

I’d welcome your thoughts, and any further explanation of your proposal. Could you see an alternative that ensured the safeguards that are in the current text?

Thanks

Martin

*From:* Erick Iriarte [mailto:eiriarte@iriartelaw.com <javascript:_e(%7B%7D,'cvml','eiriarte@iriartelaw.com');>] *Sent:* 04 March 2015 11:38 *To:* Martin Boyle *Cc:* CWG Stewardship *Subject:* Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft

HI Martin,

I have reviewed your document and thank you for inviting comments on it.

i would like to suggest a change in clause h.ii

"ii. For ccTLDs: the IANA Functions Operator should provide a service without requiring a contract and should respect the diversity of agreements and arrangements in place for ccTLDs. In particular, the nationals laws related to each ccTLD should be respected and no additional requirements should be imposed unless they are directly and demonstrably linked to global security, stability, resilience of the DNS and existing registrants use of the ccTLD."

Yours, Erick

Erick

El 3/3/2015, a las 10:09, Martin Boyle <Martin.Boyle@nominet.org.uk <javascript:_e(%7B%7D,'cvml','Martin.Boyle@nominet.org.uk');>> escribió:

Colleagues,

My apologies, but following the Christmas break I failed to progress this discussion.

I now attach a revised draft, still with a major outstanding issue in g. (page 2).

There are two variants for g.ii. One simply reduces the previous paragraph to read “For ccTLDs, respect national sovereignty;” at the request of the GAC. The other is more closely based on, but shortens, the previous text: “For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries.”

The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines:

1. I have deleted the section heading “Introduction”: there are no other section headings, so this appears to be superfluous.

2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC.

3. Accountability & transparency (e.):

a. Paragraph i: two edits that appear to have general agreement.

b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around.

c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller.

d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days.

4. Service levels (f.):

a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations).

b. Paragraph iii: Previously a stand-alone point.

5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.).

6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed.

7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion.

8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function).

<Draft of Principles - updated 3 March.docx> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org <javascript:_e(%7B%7D,'cvml','CWG-Stewardship@icann.org');> https://mm.icann.org/mailman/listinfo/cwg-stewardship

_________________________________________________________________ Erick Iriarte Área de Derecho de Nuevas Tecnologias

IRIARTE & ASOCIADOS Dirección: Miró Quesada 191, of. 510, Lima 01, Perú Telefax: (+511) 2035400 Sitio web: iriartelaw.com Twitter: @ialaw Facebook: facebook.com/ialaw

Por favor antes de imprimir piense en nuestro medio ambiente, una hoja puede hacer la diferencia en un bosque.

Please, before printing, think of our environment, a leaf can make a difference in a forest.

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I see problems in that the ccTLD is often the policy authority and I am not sure I know what the implications will be if we suggest it isn't! Sent from my iPhone On 6 Mar 2015, at 22:36, Erick Iriarte <eiriarte@iriartelaw.com<mailto:eiriarte@iriartelaw.com>> wrote: Is a good option possible. Erick El 6/3/2015, a las 11:14, Gomes, Chuck <cgomes@verisign.com<mailto:cgomes@verisign.com>> escribió: Would it work to say “policy authority or ccTLD administrator as applicable”? Chuck From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Erick Iriarte Sent: Wednesday, March 04, 2015 1:27 PM To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Martin the reason to our disagreement is easy (and with this email i understand better). 1. For you: "In particular, the national policy authority should be respected and no additional … ” (your original phrase) “policy authority” means ccTLD administrator 2. For me: "In particular, the national policy authority should be respected and no additional ...” (in the context of the parragraph) means Governmental Authority As i assume that your paragraph is in the second option, i’m not agree with that option and for that reason i proposed put the relation with local laws for each ccTLD. With your message i understand your position is in option 1, so i suggest change the words or be clear when you said “policy authority” and said “cctld administrator” if that is the situation. Yours, Erick In particular, the nationals laws related to each ccTLD should be respected and no additional requirements For you the word: national El 4/3/2015, a las 19:04, Martin Boyle <Martin.Boyle@nominet.org.uk<mailto:Martin.Boyle@nominet.org.uk>> escribió: Sorry, Erick, I still do not agree. And I fail to see why national policy authority (which could be the registry, with or without a legal base, as well as your preferred legal based route) is an issue for you. Why do you want to give the IANA functions operator a say over a ccTLD that does not have a formal legal agreement? We have authority over .uk. There is no legal basis for this, just that we set up a not-for-profit company to run the .uk domain name space. We have company law, we have various criminal and competition laws we have to abide by, just like any other organisation. But we do not need a government decree to allow us to do this. I’m happy for you to devise an additional clause that takes care of the issues that give you concerns, because I’m very clearly not understanding the subtle point you are making – sorry. But this clause is all about the IANA functions operator stepping beyond its remit and trying to impose requirements on ccTLDs and as such it is quite a major issue and will definitely be a redline for many European ccTLDs and their governments (who equally do not want extraterritoriality impacting their national environment. Hope this helps Martin From: Erick Iriarte [mailto:eiriarte@iriartelaw.com] Sent: 04 March 2015 17:11 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Martin First Point, we have a situation, some cases for law/regulation/policies and other is authorithy (some thing that could be telecom because internet is part of telecom world, somes intellectual property, others foreign affairs, other egov offices in others no specific authority ) So i suggest open option (for diversity in legal system and origin of ccTLDs and relation with governments): "In particular, the nationals regulations related to each ccTLD” <- if they haves laws, perfect. If they have authority that authority was created by a law / regulation . When we finish this point we advance to the second point. Erick El 4/3/2015, a las 18:00, Martin Boyle <Martin.Boyle@nominet.org.uk<mailto:Martin.Boyle@nominet.org.uk>> escribió: Erick, The national policy authority would either be the registry should there not be regulation or the regulator (or government) if there was. In practice in this latter case responsibility is likely to be shared as there will be some areas where one or the other had specific responsibility. So the current wording does reflect diversity of legal systems. My concern is that yours focuses only on regulated or law-based models. And as I mentioned previously, it will not be acceptable to allow the IANA functions operator to have a say over .uk just because the UK government does not see its vocation to run or regulate a TLD. For the second point, I’m sorry if I was not clear. I do not want to give the IANA functions operator any role over .uk registrants. If there is an issue, this would need to be resolved under UK law. Thanks Martin From: Erick Iriarte [mailto:eiriarte@iriartelaw.com] Sent: 04 March 2015 14:13 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Again talking about “regulation" and not “authority” will be more open to include more cctlds, we must respect that diversity of legal systems and also origin of ccTLDs (governmental, civil society, private sector, academia, ) About the second point, which is your specific proposal against my proposal? Erick El 4/3/2015, a las 15:02, Martin Boyle <Martin.Boyle@nominet.org.uk<mailto:Martin.Boyle@nominet.org.uk>> escribió: Erick, Not really: we are not regulated, we devise our own policies which are not laws or regulations (we are not a regulator either) and we still do not want the IANA functions operator feeling that it has the right to impose rules on us. I’m sorry: I appear to have missed a second change in your edits: the addition of “existing registrants’ use of the ccTLD.” I have similar problems with this, I’m afraid: I do not think that it is up to the IANA functions operator to decide what is best for .uk domain name holders. If we fail to look after registrants’ rights, we are going to see court action in the UK or lose market share in a very competitive domain name market. Similarly, if we let or encourage malicious behaviour in .uk we will fall foul of UK laws or suffer reputational damage and see (again) a loss of market share. There might be a principle associated with protecting registrants, but I’m not sure it ever belongs in an IANA stewardship transition and certainly not in any increase of power for the IANA functions operator. Best Martin From: Erick Iriarte [mailto:eiriarte@iriartelaw.com] Sent: 04 March 2015 12:35 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Martin thanks for your message. We can change Law by Regulation (that including if i’m correct UK and common law system). Not all the ccTLDs are related to one Authority specific in all the countries so we must have the most open option for all. Yours, Erick El 4/3/2015, a las 13:19, Martin Boyle <Martin.Boyle@nominet.org.uk<mailto:Martin.Boyle@nominet.org.uk>> escribió: Thanks Erick, In essence you are proposing changing the words “policy authority” to “laws related to each ccTLD”. I would have a concern with this in that .uk policy is developed through our own national process rooted in the local community and working in a multi-stakeholder process (and the same is the case for many other ccTLDs). Our policies are not written in law, but are based on a national discussion leading to general consensus. What I like about the current formulation is that this policy authority cannot be overturned by a zealous Californian-based organisation with its own idea of what is the right way to do things. Your wording would seem to open this as an option because our policies are not laws (although they would not conflict with the UK’s legal requirements). I’d welcome your thoughts, and any further explanation of your proposal. Could you see an alternative that ensured the safeguards that are in the current text? Thanks Martin From: Erick Iriarte [mailto:eiriarte@iriartelaw.com] Sent: 04 March 2015 11:38 To: Martin Boyle Cc: CWG Stewardship Subject: Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft HI Martin, I have reviewed your document and thank you for inviting comments on it. i would like to suggest a change in clause h.ii "ii. For ccTLDs: the IANA Functions Operator should provide a service without requiring a contract and should respect the diversity of agreements and arrangements in place for ccTLDs. In particular, the nationals laws related to each ccTLD should be respected and no additional requirements should be imposed unless they are directly and demonstrably linked to global security, stability, resilience of the DNS and existing registrants use of the ccTLD." Yours, Erick Erick El 3/3/2015, a las 10:09, Martin Boyle <Martin.Boyle@nominet.org.uk<mailto:Martin.Boyle@nominet.org.uk>> escribió: Colleagues, My apologies, but following the Christmas break I failed to progress this discussion. I now attach a revised draft, still with a major outstanding issue in g. (page 2). There are two variants for g.ii. One simply reduces the previous paragraph to read “For ccTLDs, respect national sovereignty;” at the request of the GAC. The other is more closely based on, but shortens, the previous text: “For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries.” The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines: 1. I have deleted the section heading “Introduction”: there are no other section headings, so this appears to be superfluous. 2. Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC. 3. Accountability & transparency (e.): a. Paragraph i: two edits that appear to have general agreement. b. Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around. c. Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller. d. Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days. 4. Service levels (f.): a. Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations). b. Paragraph iii: Previously a stand-alone point. 5. Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.). 6. Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed. 7. Separability: modifications to i.i. and i.iii generally agreed in the last discussion. 8. Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function). <Draft of Principles - updated 3 March.docx>_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship _________________________________________________________________ Erick Iriarte Área de Derecho de Nuevas Tecnologias IRIARTE & ASOCIADOS Dirección: Miró Quesada 191, of. 510, Lima 01, Perú Telefax: (+511) 2035400 Sitio web: iriartelaw.com<http://iriartelaw.com/> Twitter: @ialaw Facebook: facebook.com/ialaw<http://facebook.com/ialaw> Por favor antes de imprimir piense en nuestro medio ambiente, una hoja puede hacer la diferencia en un bosque. Please, before printing, think of our environment, a leaf can make a difference in a forest. Declaracion de Confidencialidad El contenido de este mensaje de correo electronico y de sus archivos adjuntos esta(n) dirigido(s) exclusivamente a el(los) destinatario(s) del mismo. Adicionalmente, este mensaje y su contenido pueden ser privilegiados y estar cubiertos por la reserva profesional entre abogado y cliente. Si usted no es el destinatario indicado, o si este mensaje le ha sido enviado por error, queda advertido en el sentido de no leer, divulgar, reproducir, distribuir, diseminar o utilizar este mensaje en forma alguna. La entrega de este mensaje a cualquier persona diferente del(de los) destinatario(s) a quien(es) se ha dirigido no constituye una renuncia de privilegios o confidencialidad. Si usted recibe este mensaje por error, por favor advierta al remitente mediante correo de respuesta; adicionalmente le solicitamos que inmediatamente proceda a suprimir este mensaje y sus archivos adjuntos, si los hubiere. Statement of Confidentiality The contents of this e-mail message and its attachments are intended solely for the addressee(s) hereof. In addition, this e-mail transmission may be confidential and it may be subject to privilege protecting communications between attorneys or solicitors and their clients. If you are not the named addressee, or if this message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate or otherwise use this e-mail. Delivery of this message to any person other than the intended recipient(s) is not intended in any way to waive privilege or confidentiality. If you have received this transmission in error, please alert the sender by reply e-mail; we also request that you immediately delete this message and its attachments, if any. Please, before printing, think of our environment, a leaf can make a difference in a forest.

Perhaps we can say the following "policy authority (ccTLD administrator or other as applicable)" On 3/6/2015 11:05 PM, Martin Boyle wrote:

I see problems in that the ccTLD is often the policy authority and I am not sure I know what the implications will be if we suggest it isn't!

Sent from my iPhone

On 6 Mar 2015, at 22:36, Erick Iriarte <eiriarte@iriartelaw.com <mailto:eiriarte@iriartelaw.com>> wrote:

...

Is a good option possible.

Erick

...

El 6/3/2015, a las 11:14, Gomes, Chuck <cgomes@verisign.com <mailto:cgomes@verisign.com>> escribió:

Would it work to say “policy authority or ccTLD administrator as applicable”? Chuck *From:*cwg-stewardship-bounces@icann.org <mailto:cwg-stewardship-bounces@icann.org>[mailto:cwg-stewardship-bounces@icann.org]*On Behalf Of*Erick Iriarte *Sent:*Wednesday, March 04, 2015 1:27 PM *To:*Martin Boyle *Cc:*CWG Stewardship *Subject:*Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Martin the reason to our disagreement is easy (and with this email i understand better). 1. For you: "In particular, the national policy authority should be respected and no additional … ” (your original phrase) “policy authority” means ccTLD administrator 2. For me: "In particular, the national policy authority should be respected and no additional ...” (in the context of the parragraph) means Governmental Authority As i assume that your paragraph is in the second option, i’m not agree with that option and for that reason i proposed put the relation with local laws for each ccTLD. With your message i understand your position is in option 1, so i suggest change the words or be clear when you said “policy authority” and said “cctld administrator” if that is the situation. Yours, Erick In particular, the nationals laws related to each ccTLD should be respected and no additional requirements For you the word: national

El 4/3/2015, a las 19:04, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió: Sorry, Erick, I still do not agree. And I fail to see why national policy authority (which could be the registry, with or without a legal base, as well as your preferred legal based route) is an issue for you. Why do you want to give the IANA functions operator a say over a ccTLD that does not have a formal legal agreement? We have authority over .uk. There is no legal basis for this, just that we set up a not-for-profit company to run the .uk domain name space. We have company law, we have various criminal and competition laws we have to abide by, just like any other organisation. But we do not need a government decree to allow us to do this. I’m happy for you to devise an additional clause that takes care of the issues that give you concerns, because I’m very clearly not understanding the subtle point you are making – sorry. But this clause is all about the IANA functions operator stepping beyond its remit and trying to impose requirements on ccTLDs and as such it is quite a major issue and will definitely be a redline for many European ccTLDs and their governments (who equally do not want extraterritoriality impacting their national environment. Hope this helps Martin *From:*Erick Iriarte [mailto:eiriarte@iriartelaw.com] *Sent:*04 March 2015 17:11 *To:*Martin Boyle *Cc:*CWG Stewardship *Subject:*Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Martin First Point, we have a situation, some cases for law/regulation/policies and other is authorithy (some thing that could be telecom because internet is part of telecom world, somes intellectual property, others foreign affairs, other egov offices in others no specific authority ) So i suggest open option (for diversity in legal system and origin of ccTLDs and relation with governments): "In particular, the nationals regulations related to each ccTLD” <- if they haves laws, perfect. If they have authority that authority was created by a law / regulation . When we finish this point we advance to the second point. Erick

El 4/3/2015, a las 18:00, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió: Erick, The national policy authority would either be the registry should there not be regulation or the regulator (or government) if there was. In practice in this latter case responsibility is likely to be shared as there will be some areas where one or the other had specific responsibility. So the current wording does reflect diversity of legal systems. My concern is that yours focuses only on regulated or law-based models. And as I mentioned previously, it will not be acceptable to allow the IANA functions operator to have a say over .uk just because the UK government does not see its vocation to run or regulate a TLD. For the second point, I’m sorry if I was not clear. I do not want to give the IANA functions operator any role over .uk registrants. If there is an issue, this would need to be resolved under UK law. Thanks Martin *From:*Erick Iriarte [mailto:eiriarte@iriartelaw.com] *Sent:*04 March 2015 14:13 *To:*Martin Boyle *Cc:*CWG Stewardship *Subject:*Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Again talking about “regulation" and not “authority” will be more open to include more cctlds, we must respect that diversity of legal systems and also origin of ccTLDs (governmental, civil society, private sector, academia, ) About the second point, which is your specific proposal against my proposal? Erick

El 4/3/2015, a las 15:02, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió: Erick, Not really: we are not regulated, we devise our own policies which are not laws or regulations (we are not a regulator either) and we still do not want the IANA functions operator feeling that it has the right to impose rules on us. I’m sorry: I appear to have missed a second change in your edits: the addition of “existing registrants’ use of the ccTLD.” I have similar problems with this, I’m afraid: I do not think that it is up to the IANA functions operator to decide what is best for .uk domain name holders. If we fail to look after registrants’ rights, we are going to see court action in the UK or lose market share in a very competitive domain name market. Similarly, if we let or encourage malicious behaviour in .uk we will fall foul of UK laws or suffer reputational damage and see (again) a loss of market share. There might be a principle associated with protecting registrants, but I’m not sure it ever belongs in an IANA stewardship transition and certainly not in any increase of power for the IANA functions operator. Best Martin *From:*Erick Iriarte [mailto:eiriarte@iriartelaw.com] *Sent:*04 March 2015 12:35 *To:*Martin Boyle *Cc:*CWG Stewardship *Subject:*Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft Martin thanks for your message. We can change Law by Regulation (that including if i’m correct UK and common law system). Not all the ccTLDs are related to one Authority specific in all the countries so we must have the most open option for all. Yours, Erick

El 4/3/2015, a las 13:19, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió: Thanks Erick, In essence you are proposing changing the words “policy authority” to “laws related to each ccTLD”. I would have a concern with this in that .uk policy is developed through our own national process rooted in the local community and working in a multi-stakeholder process (and the same is the case for many other ccTLDs). Our policies are not written in law, but are based on a national discussion leading to general consensus. What I like about the current formulation is that this policy authority cannot be overturned by a zealous Californian-based organisation with its own idea of what is the right way to do things. Your wording would seem to open this as an option because our policies are not laws (although they would not conflict with the UK’s legal requirements). I’d welcome your thoughts, and any further explanation of your proposal. Could you see an alternative that ensured the safeguards that are in the current text? Thanks Martin *From:*Erick Iriarte [mailto:eiriarte@iriartelaw.com] *Sent:*04 March 2015 11:38 *To:*Martin Boyle *Cc:*CWG Stewardship *Subject:*Re: [CWG-Stewardship] Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship: New Draft HI Martin,

I have reviewed your document and thank you for inviting comments on it.

i would like to suggest a change in clause h.ii "ii. For ccTLDs: the IANA Functions Operator should provide a service without requiring a contract and should respect the diversity of agreements and arrangements in place for ccTLDs. In particular, the nationals laws related to each ccTLD should be respected and no additional requirements should be imposed unless they are directly and demonstrably linked to global security, stability, resilience of the DNS and existing registrants use of the ccTLD." Yours, Erick Erick

El 3/3/2015, a las 10:09, Martin Boyle <Martin.Boyle@nominet.org.uk <mailto:Martin.Boyle@nominet.org.uk>> escribió: Colleagues, My apologies, but following the Christmas break I failed to progress this discussion. I now attach a revised draft, still with a major outstanding issue in g. (page 2). There are two variants for g.ii. One simply reduces the previous paragraph to read “For ccTLDs, respect national sovereignty;” at the request of the GAC. The other is more closely based on, but shortens, the previous text: “For ccTLDs, policy decisions may be made locally through nationally agreed processes in accordance with national laws and in compliance with IETF technical standards. Post transition of the IANA function nothing will be done by ICANN/IANA to impact the stable operation of ccTLD Registries and gTLD Registries.” The draft contains a number of marked up edits from previous discussions that seem to have general agreement. For the text redlines: 1.I have deleted the section heading “Introduction”: there are no other section headings, so this appears to be superfluous. 2.Principles b. and c. (previously sub-clauses to the heading on security, stability and resilience) are now stand-alone at the request of the GAC. 3.Accountability & transparency (e.): a.Paragraph i: two edits that appear to have general agreement. b.Paragraph ii: a new edit to correct the text. The new version amends the text to reflect the sub-heading. The old version put it the other way around. c.Paragraph iv: Footnote on capture added as requested courtesy of Alan Greenberg & Milton Mueller. d.Paragraph vi: While I think we all agree on the need for some form of appeals process, there is still some debate as to where that should lie. So for example, the appeals process might well not be designed by the CWG and might be the responsibility of the CCWG. For ccTLDs, it might mean that a third party might have a say over a national decision on a ccTLD. I flag this in case further thought is needed in the light of discussion over the last few days. 4.Service levels (f.): a.Paragraph ii: I think the majority view is that automation should only be for routine functions (and not for controversial or subjective decisions such as on redelegations). b.Paragraph iii: Previously a stand-alone point. 5.Policy based (g): other than some minor editing, there are two alternatives for g.ii. as noted above. I would note that there was no support in our last discussion to retain g.vi. (require bottom-up modalities) as this is treated elsewhere (in particular in the chapeau text to g.). 6.Diversity of customers (h.): some (I hope) minor and uncontroversial edits in the chapeau and in i. and ii. The text in paragraph iii was generally agreed. 7.Separability: modifications to i.i. and i.iii generally agreed in the last discussion. 8.Multi-stakeholder principle paragraph j: generally agreed in the last discussion subject to concerns about wording (the previous text appeared to recommend direct involvement in the management of the IANA function). <Draft of Principles - updated 3 March.docx>_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship

_________________________________________________________________ Erick Iriarte Área de Derecho de Nuevas Tecnologias

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Martin and Elise May I thank you both for taking the time to ensure there is consensus on the proposals principles document. I hope the following is acceptable. It may help the reader if the purpose of the proposals principles document is very clear. At the start of the document to clarify the intent: The principles contained within this document are intended to provide guidance to members of the CWG in their work in formulating proposal(s) for stable transition of the IANA functions contract from NTIA. This means that the proposals can be tested against the principles and criteria before they are sent to the ICG. Regarding 7ii) May I suggest the text reads: For ccTLDs – Respect national laws as well as any applicable consensus ICANN Policies developed by the appropriate PDP mechanism and IETF technical standards. The second paragraph is fine as is. Best Paul

Thanks Paul, - I think we are getting closer to a solution :), but I think it's important that we keep some reference to local processes and decisions also, - because in many cases there is no applicable law referring to ccTLD resources, - but national/local processes set in agreements between national authorities and the ccTLD operator and so on. It is very important to give some reference to and recognize these "non-law" processes also. Elise -----Opprinnelig melding----- Fra: Paul M Kane - CWG [mailto:paul.kane-cwg@icb.co.uk] Sendt: 19. mars 2015 11:33 Til: Lindeberg, Elise; Martin.Boyle@nominet.org.uk Kopi: cwg-stewardship@icann.org Emne: Principles and Criteria that Should Underpin Decisions on the Transition of NTIA Stewardship Martin and Elise May I thank you both for taking the time to ensure there is consensus on the proposals principles document. I hope the following is acceptable. It may help the reader if the purpose of the proposals principles document is very clear. At the start of the document to clarify the intent: The principles contained within this document are intended to provide guidance to members of the CWG in their work in formulating proposal(s) for stable transition of the IANA functions contract from NTIA. This means that the proposals can be tested against the principles and criteria before they are sent to the ICG. Regarding 7ii) May I suggest the text reads: For ccTLDs - Respect national laws as well as any applicable consensus ICANN Policies developed by the appropriate PDP mechanism and IETF technical standards. The second paragraph is fine as is. Best Paul