Comments on the Preliminary GNSO Issue Report on the RAA Amendments

Mon Jan 16 11:51:20 CET 2012

Dear all,

Since I have seen so much support in the list, I have just sent a statement on behalf of NCUC supporting the comments on the RAA submitted by Milton and Wendy. I would like to thank them both for drafting these.

Thanks

KK

Dr. Konstantinos Komaitis,

Senior Lecturer,
Director of Postgraduate Instructional Courses
Director of LLM Information Technology and Telecommunications Law
University of Strathclyde,
The Law School,
Graham Hills building,
50 George Street, Glasgow G1 1BA
UK
tel: +44 (0)141 548 4306
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulation-isbn9780415477765
Selected publications: http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
Website: www.komaitis.org<http://www.komaitis.org>

From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of Dan Krimm
Sent: Σάββατο, 14 Ιανουαρίου 2012 8:50 μμ
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: [NCSG-Discuss] Comments on the Preliminary GNSO Issue Report on the RAA Amendments

Thanks Robin,

So then, I'm anticipating the possibility of NCSG-PC following on to this?  Maybe try that first, and only if rough consensus cannot be reached at the SG level NCUC might take it up at the constituency level (does that have any weight by itself within GNSO?)?

Dan

--
Any opinions expressed in this message are those of the author alone and do not necessarily reflect any position of the author's employer.

At 12:35 PM -0800 1/14/12, Robin Gross wrote:
The NCSG Charter is pretty clear about how the NCSG issues policy statements.  Basically, statements are approved by a rough consensus of members of the NCSG Policy Committee.  Rough consensus does not allow any one member to veto a decision of the group, however.

NCSG Charter available at:
     https://community.icann.org/display/gnsononcomstake/Final+Approved+Current+NCSG+Charter

2.1.3.
NCSG Policy Committee (NCSG-PC):
The NCSG Policy Committee serves as a focal point for policy statements issued in the name of the NCSG, organizes policy initiatives on behalf of NCSG, and may provide policy research and guidance to NCSG GNSO Council Representatives. Formation of the NCSG-PC, its composition, and duties within the NCSG are set out in Section 2.5.
[...]
2.5 The Policy Committee
The NCSG Policy Committee is responsible for:
·         Discussion and development of substantive policies and statements issued in the name of the NCSG. This activity will require coordination with the membership and the Constituencies;
·         Organize policy initiatives on behalf of NCSG membership, including PDP initiatives from the membership;
·         Provide policy research and guidance to NCSG representatives on the GNSO Council;
·         Keep membership informed of GNSO Council activities;
·         Organize, appoint where appropriate, and track NCSG participation in GNSO and other pertinent Working Groups.
·         Organization and oversight of NCSG participation in any GNSO Council-related tasks, whether mandated by Bylaws, Council Procedures or Council decisions.
·         Document methods and procedures used for decision-making. Such documentation is subject to review by the NCSG-EC.
[...]
2.5.2. NCSG-PC Decision making
·         By default NCSG-PC decisions are made by rough consensus of full NCSG-PC members. Rough consensus means that while all members do not need to agree and that no single member can veto a decision, all views must be heard and considered. Any minority views must be recorded along with the rough consensus position.
[...]

On Jan 14, 2012, at 12:13 PM, Dan Krimm wrote:

While the deadline seems to have passed for individual comments(?), I
support this as an NCUC statement, or if we can get NCSG consensus then the
full SG.  Looks like NCUC-ers are trending in support.

Alain once suggested something along the lines of "absence of objection
equals (implicit) support by NPOC" but unless there is an official
statement of NPOC leadership to that effect as a status-quo protocol I'd be
uncomfortable just talking the implicit as explicit, here.  Don't want to
put words in peoples' mouths that may not be there and have them object
later on.  Uncertainty is an obstacle here.

Dan

--
Any opinions expressed in this message are those of the author alone and do
not necessarily reflect any position of the author's employer.

At 10:42 PM +0000 1/13/12, Konstantinos Komaitis wrote:

Given the support this statement seems to be receiving I suggest we submit
this as an NCUC statement. Can someone who is not in Europe submit this?

Thanks and again thanks to Milton for a great statement.

KK

Sent from my iPhone

On 13 Jan 2012, at 22:30, "Alex Gakuru" <gakuru at GMAIL.COM<mailto:gakuru at GMAIL.COM>> wrote:

+1

Gakuru

On 1/14/12, Nicolas Adam <nickolas.adam at gmail.com<mailto:nickolas.adam at gmail.com>> wrote:

+1

Nicolas

On 1/13/2012 4:39 PM, Brenden Kuerbis wrote:

Thanks Milton for taking the time to write this.

I support this statement personally. I also support the PC endorsing
it as an NCSG or at least NCUC Statement.

---------------------------------------
Brenden Kuerbis
Internet Governance Project
http://internetgovernance.org <http://internetgovernance.org/>

On Fri, Jan 13, 2012 at 3:08 PM, Avri Doria <avri at acm.org<mailto:avri at acm.org>
<mailto:avri at acm.org>> wrote:

  i support this statement and support the PCs endorsing it as an
  NCSG or at least NCUC Statement

  avri

  On 13 Jan 2012, at 12:52, Milton L Mueller wrote:

Comments of Dr. Milton Mueller on the Preliminary GNSO Issue
  Report on the Registrar Accreditation Agreement Amendments

As a member of the Executive Committee of the Noncommercial
  Stakeholders Group, I am happy to see that the board has
  recognized that these demands for changes to the RAA are important
  policy issues. As such, they should be handled by the GNSO, not
  through bilateral negotiations between Registrars and ICANN, and
  not through unilateral dicta from the GAC and law-enforcement
  agencies.

However, the value of this exercise is diminished by our
  knowledge that private negotiations between registrars and ICANN
  are already underway, dealing with basically the same issues. This
  creates confusion and raises the danger of a lack of
  representation in the evolution of a solution. The issues report
  does not seem to clarify how these two processes intersect. It is
  our view that the conclusions of a PDP would override any private
  agreements made.

The way registrars handle the personal, financial and technical
  data of their customers, and the way they interact with law
  enforcement agencies, is a policy issue of the highest order. It
  involves privacy and freedom of expression issues, due process
  issues, as well as cyber-security and the effectiveness of
  legitimate law enforcement in a globalized environment. The issue
  is complicated by the fact that law enforcement from governments
  anywhere in the world would be involved, and some of them are not
  committed to due process, individual liberty or privacy. Even
  legitimate governments can engage in illegitimate,
  extra-territorial assertions of their authority or abuses of due
  process. LEAs have a long history of demanding access to
  information that makes their jobs easier, and this is a legitimate
  concern. However, in democratic countries the demands of law
  enforcement have always been constrained by the procedural and
  substantive rights of individuals. ICANN must take this into account.

The demands of LEAs to make registrars collect, maintain and
  validate data is reminiscent of what China and South Korea have
  called a "real names" policy, which makes all participation in
  Internet communication contingent upon giving government
  authorities sensitive personal identification information and a
  blanket authority to discontinue service should any wrongdoing be
  suspected. This not only raises civil liberties issues, but places
  potentially enormous cost burdens on registrars.

The concept of intermediary responsibility is being actively
  debated in a number of Internet policy making forums. (E.g., see
  the recent OECD report "The Role of Internet Intermediaries in
  Advancing Public Policy Objectives."*  A point of consensus in
  this controversial topic is that any attempt to load up Internet
  intermediaries (such as domain name registrars) with too many
  ancillary responsibilities can stifle the innovation and growth we
  have come to associate with the Internet economy. It can also
  unfairly distribute the costs and burdens involved. Registrars who
  are expected to react instantly to any demand that comes to them
  from anyone claiming to be law enforcement will reduce their risk
  and liability by acceding to what may be unjust demands and
  sacrificing the rights of their users.

I and many others in the broader ICANN community were troubled
  by the way in which the Board seems to have been stampeded into
  RAA amendments by a few GAC members. It is important to keep in
  mind that the resolutions or "decisions" made by the GAC's
  governmental members are not subject to ratification by their
  national legislatures, or to review by their national courts.
  Thus, the GAC has no legitimacy as a policy making organ and no
  authority to demand changes to the RAA. As an Advisory Committee,
  they can and should make us aware of certain concerns, but they
  are in no position to bypass ICANN's own policy development
  processes. Furthermore, we continue to be troubled by the failure
  or refusal of the law enforcement agencies making these demands to
  liaise with noncommercial users or civil liberties groups.

We therefore support the initiation of a legitimate, inclusive
  policy development process that includes all stakeholders,
  including governments and law enforcement agencies. This kind of
  balanced, multi-stakeholder process is not simply a matter of
  fairness, it is eminently practical when dealing with a globalized
  jurisdiction where no single government can claim to be a
  legitimate representative of all the people and businesses
  involved. Proposals that come from one stakeholder group are
  certain to be suboptimal or harmful to other stakeholder groups.
  ICANN was created to resolve these conflicts of interest in a
  balanced way that includes all affected groups.

*

http://www.oecd.org/document/34/0,3746,en_2649_34223_48773090_1_1_1_1,00.html

Milton L. Mueller
Professor, Syracuse University School of Information Studies
Internet Governance Project
http://blog.internetgovernance.org

IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
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