Re: [gnso-igo-ingo] IGO-INGO - Legal Issues Review - RySG Proposal

["David W. Maher" <dmaher@xxxxxxx>]

Please see comments below:
David W. Maher
Senior Vice President – Law & Policy
Public Interest Registry
312 375 4849

From: "Shatan, Gregory S." <GShatan@xxxxxxxxxxxxx<mailto:GShatan@xxxxxxxxxxxxx>>
Date: Mon, 12 Nov 2012 19:38:08 -0500
To: CHUCK GOMES <cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>>, Jim Bikoff 
<jbikoff@xxxxxxxxx<mailto:jbikoff@xxxxxxxxx>>, 
"gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>" 
<gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>>
Cc: David Heasley <dheasley@xxxxxxxxx<mailto:dheasley@xxxxxxxxx>>, Kiran 
Malancharuvil <kmalancharuvil@xxxxxxxxx<mailto:kmalancharuvil@xxxxxxxxx>>
Subject: RE: [gnso-igo-ingo] IGO-INGO - Legal Issues Review - RySG Proposal

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.
 DWM: The question leaves it up to the GC office to do research if they believe 
it necessary.

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.
DWM: I have no objection to use of the phrase "can be construed or interpreted 
to",  but I object to the other changes, and the deletion of "by or under the 
authority of ICANN". We, the WG, are trying to decide whether there are legal 
constraints that affect the policy questions that form the subject matter of 
this WG's charter. There could be years of research and analysis of statutes 
and treaties, but we need to start w/ the opinion of ICANN counsel on this 
specific question.


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.)

 DWM: The qualification re: INGOs comes from the wording of the Mission and 
Scope of the WG in the proposed charter that is now a motion before the GNSO 
Council.


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.

 DWM: I believe ICANN counsel is competent to opine on the legal obligations 
that are the subject of the proposed question.


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 inunder 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<mailto:gshatan@xxxxxxxxxxxxx>
www.reedsmith.com





From: owner-gnso-igo-ingo@xxxxxxxxx<mailto: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<mailto: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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