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RE: [gnso-igo-ingo] IGO-INGO - Legal Issues Review - RySG Proposal
- To: "'Gomes, Chuck'" <cgomes@xxxxxxxxxxxx>, Jim Bikoff <jbikoff@xxxxxxxxx>, "gnso-igo-ingo@xxxxxxxxx" <gnso-igo-ingo@xxxxxxxxx>
- Subject: RE: [gnso-igo-ingo] IGO-INGO - Legal Issues Review - RySG Proposal
- From: "Shatan, Gregory S." <GShatan@xxxxxxxxxxxxx>
- Date: Tue, 13 Nov 2012 00:38:08 +0000
I think that, as drafted, this request is troublesome and ambiguous in several
respects (with or without Jim Bikoff’s additions).
First, the request only asks if ICANN is “aware” of any jurisdiction, etc.
Thus, it is phrased as a request based on ICANN’s current knowledge, not a
request for research or analysis, and would not result in any kind of
“definitive” response. Rather, it would result in an anecdotal response, which
would essentially be worthless.
Second, it asks the GC’s office to identify jurisdictions where applicable law
“prohibits … the following actions by or under the authority of ICANN.” This
is a very narrow phrasing of this question. Given the slow pace at which
statutes and especially treaties change, it is highly unlikely that laws in
many (if any) jurisdictions specifically mention delegation of top level
domains or domain names of IGO or INGOs, or mention ICANN. In many if not most
cases, we will be dealing with generally drafted laws of broad applicability
dating from before the Internet era. The question may be one of first
impression – I am certainly not aware of any cases construing laws applicable
to IGO/INGO names in the domain name context, much less the gTLD context, which
is by definition an unanswered question. So, while it is likely that there are
few if any laws that specifically and explicitly prohibit these specific named
activities by these specific named actors, that is not how the law works. The
question instead should be phrased to ask whether there are any applicable laws
that could be interpreted to prohibit such actions. This would by definition
require research, analysis and consideration of various interpretations of
statutes and treaties relating to IGO/INGO names, without engaging in advocacy
for one approach over another.
Third, the question makes reference to the qualification that an international
non-governmental organization must be “receiving protections under treaties and
statutes under multiple jurisdictions” in order to be considered. This “gating
factor” has not been agreed on as a minimum qualification, and one of the
things this WG should be doing is deciding whether this is a valid and
appropriate distinction. For instance, treaties may or may not require
enabling legislation in order to be effective in a given jurisdiction; thus,
the existence of the treaty itself could and should be sufficient to merit
consideration with or without enabling legislation. In other cases there could
be applicable statutes in multiple jurisdictions but no treaty; this should not
be a disqualification. Put another way, the idea that there need to be “two
levels of protection” in order to merit consideration for reservation is an
assertion and not a given. (On a smaller point it is unclear whether the
question intends to apply this test to IGOs as well; it seems to apply to INGOs
only as drafted given the placement of the acronyms.)
Finally, this is really not comparable to asking ICANN for guidance on
registry/registrar agreements. These are contracts promulgated by ICANN and to
which ICANN is a party. ICANN counsel may be (indeed should be) competent to
answer questions of contractual interpretation. Whether they are competent to
opine on matters of international and transnational legal interpretation is an
entirely different matter.
As such, it is an interesting (and interestingly drafted) request, but I don’t
think it will be definitive or clarifying. At most, It might start a lively
debate. I would suggest the following changes, based on the above comments.
IGO-INGO Legal Review request:
With respect to the question of securing legal advice regarding the protection
of IGO-INGO names, taking into account the work previously done regarding the
IOC/Red Cross Red Crescent, the WG requests from the office of the ICANN
General Counsel an answer to the following question:
Is ICANN aware of any jurisdiction in which a statute, treaty or other
applicable law can be construed or interpreted to prohibit either or both of
the following actions by or under the authority of ICANN:
a) the assignment by ICANN at the top level, or
b) the registration by a registry or a registrar accredited by ICANN of a
domain name requested by any party at the second level,
of the name or acronym of
(i) an intergovernmental organization (IGO) or
(ii) an international non-governmental organization receiving
protections under treaties or and statutes having effect in under multiple
jurisdictions (INGO)?
If the answer is affirmative, please specify the jurisdiction(s) and cite the
statute, treaty or other applicable law. Please also cite the statutes,
treaties and applicable laws considered, and the reasons for an affirmative or
negative determination.
Best regards,
Greg
Gregory S. Shatan
Partner
Reed Smith LLP
599 Lexington Avenue
New York, NY 10022
212.549.0275 (Phone)
917.816.6428 (Mobile)
212.521.5450 (Fax)
gshatan@xxxxxxxxxxxxx
www.reedsmith.com
From: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On
Behalf Of Gomes, Chuck
Sent: Monday, November 12, 2012 6:26 PM
To: Jim Bikoff; gnso-igo-ingo@xxxxxxxxx
Cc: David Heasley; Kiran Malancharuvil
Subject: RE: [gnso-igo-ingo] IGO-INGO - Legal Issues Review - RySG Proposal
Jim,
Registries and registrars need a definitive response from the ICANN General
Counsel’s Office regarding whether there are jurisdictions for which
registration of IOC, RC and IGO names are illegal. It will be up to the GC
Office as to whether they can answer the questions using existing research that
has already been done or whether they need any more research. If you are
correct, they may not need to do any further research for the IOC and RC names.
The RySG suggested request of the GC Office is not a request for legal
research but rather a request for direction regarding the legality of
registering IOC, RC and IGO names because we are required to follow applicable
laws. It is a common practice in the GNSO to request legal direction from the
GC Office with regard to our registry and registrar agreements.
With regard to your suggested changes to the recommended RySG request, I
personally do not see any problems with them, but I will leave it up to David
Maher as the official RySG representative to the WG to respond. The changes
you propose don’t seem necessary to me because I cannot imagine the GC Office
handling the request without doing what you suggest, but neither do they seem
to change the substance of the request so making them seems okay to me.
It is also my opinion that the GC Office response to the request will clarify
the work needed by the WG.
Chuck
From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx>
[mailto:owner-gnso-igo-ingo@xxxxxxxxx] On Behalf Of Jim Bikoff
Sent: Monday, November 12, 2012 5:50 PM
To: gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Cc: David Heasley; Kiran Malancharuvil
Subject: [gnso-igo-ingo] IGO-INGO - Legal Issues Review - RySG Proposal
Dear All,
The IOC does not believe that it is necessary to ask for legal review in
respect to protections for the IOC and Red Cross. If the group decides that
the inquiry should be made, the IOC requests that issues relating to the IOC
and Red Cross be separated from the issues relating to IGO/INGO names and
acronyms, taking into account the work that was done previously.
Accordingly, the IOC submits the following revised language:
IGO-INGO Legal Review request:
With respect to the question of securing legal advice regarding the protection
of IGO-INGO names, taking into account the work previously done regarding the
IOC/Red Cross Red Crescent, the WG requests from the office of the ICANN
General Counsel an answer to the following question:
Is ICANN aware of any jurisdiction in which a statute, treaty or other
applicable law prohibits either or both of the following actions by or under
the authority of ICANN:
a) the assignment by ICANN at the top level, or
b) the registration by a registry or a registrar accredited by ICANN of a
domain name requested by any party at the second level, of the name or acronym
of an intergovernmental organization (IGO) or an international non-governmental
organization receiving protections under treaties and statutes under multiple
jurisdictions (INGO)?
If the answer is affirmative, please specify the jurisdiction(s) and cite the
law.
The WG requests that any previous correspondence, determination and research
from ICANN General Counsel or ICANN Outside Counsel as to the IOC and Red Cross
Red Crescent Movements be provided as a matter of expediency, without
duplicating previous efforts.
Best regards,
Jim
James L. Bikoff
Silverberg, Goldman & Bikoff, LLP
1101 30th Street, NW
Suite 120
Washington, DC 20007
Tel: 202-944-3303
Fax: 202-944-3306
jbikoff@xxxxxxxxx<mailto:jbikoff@xxxxxxxxx>
From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx>
[mailto:owner-gnso-igo-ingo@xxxxxxxxx] On Behalf Of Berry Cobb
Sent: Wednesday, November 07, 2012 10:18 PM
To: gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Subject: [gnso-igo-ingo] IGO-INGO - Legal Issues Review - RySG Proposal
Team,
Below you will find the RySG’s proposed version for the Legal Issue Review
request. Per our call today, the WG is welcome to make amendment suggestions
via the list. Thank you for your input. B
IGO-INGO Legal Review request:
With respect to the question of securing legal advice regarding the protection
of IGO-INGO names, the WG requests from the office of the ICANN General Counsel
an answer to the following question:
Is ICANN aware of any jurisdiction in which a statute, treaty or other
applicable law prohibits either or both of the following actions by or under
the authority of ICANN:
a) the assignment by ICANN at the top level, or
b) the registration by a registry or a registrar accredited by ICANN of a
domain name requested by any party at the second level, of the name or acronym
of an intergovernmental organization (IGO) or an international non-governmental
organization receiving protections under treaties and statutes under multiple
jurisdictions (INGO)?
If the answer is affirmative, please specify the jurisdiction(s) and cite the
law."
Berry Cobb
Internet Corporation for Assigned Names & Numbers (ICANN)
720.839.5735
mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>
@berrycobb
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