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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

It seems to me that the WG clearly needs direction from the GCO regarding the 
applicability of international statutes and national laws regarding domain 
registrations involving the organizations under the purview of our charter.  
Not only will that direction guide our work but it also will help the GNSO deal 
with the GAC's question as to why a PDP is needed; the GAC appears to believe 
that the law is clear so a PDP isn't even needed.  There is no doubt in my mind 
that there are international statutes and national laws that deal with this 
subject but I am not at all clear regarding how the actually apply to 
registration of domain names nor am I qualified to make that judgment.

Our challenge then is to word the request in a way that maximizes our chances 
of getting a helpful response from the GCO.  Would it be helpful to form a 
small subgroup of qualified volunteers to refine the wording of the request?  
If so, I would recommend that Greg and David be the first volunteers.

Chuck

> -----Original Message-----
> From: David W. Maher [mailto:dmaher@xxxxxxx]
> Sent: Tuesday, November 13, 2012 10:54 AM
> To: Shatan, Gregory S.; Gomes, Chuck; Jim Bikoff; gnso-igo-
> ingo@xxxxxxxxx
> Cc: David Heasley; Kiran Malancharuvil
> Subject: Re: [gnso-igo-ingo] IGO-INGO - Legal Issues Review - RySG
> Proposal
> 
> Please see further comments
> David W. Maher
> Senior Vice President - Law & Policy
> Public Interest Registry
> 312 375 4849
> 
> From: "Shatan, Gregory S."
> <GShatan@xxxxxxxxxxxxx<mailto:GShatan@xxxxxxxxxxxxx>>
> Date: Tue, 13 Nov 2012 02:55:32 -0500
> To: David Maher <dmaher@xxxxxxx<mailto:dmaher@xxxxxxx>>, 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
> 
> My responses are below.
> 
> -----Original Message-----
> From: David W. Maher [mailto:dmaher@xxxxxxx]
> Sent: Monday, November 12, 2012 11:11 PM
> To: Shatan, Gregory S.; CHUCK GOMES; 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
> 
> 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<mailto:GShatan@Reed
> Smith.com<mailto:GShatan@xxxxxxxxxxxxx>>>
> Date: Mon, 12 Nov 2012 19:38:08 -0500
> To: CHUCK GOMES
> <cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx<mailto:cgomes@verisign.
> com<mailto:cgomes@xxxxxxxxxxxx>>>, Jim Bikoff
> <jbikoff@xxxxxxxxx<mailto:jbikoff@xxxxxxxxx<mailto:jbikoff@xxxxxxxxx<ma
> ilto:jbikoff@xxxxxxxxx>>>, "gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-
> ingo@xxxxxxxxx><mailto:gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-
> ingo@xxxxxxxxx>>" <gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-
> ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-
> ingo@xxxxxxxxx>>>
> Cc: David Heasley
> <dheasley@xxxxxxxxx<mailto:dheasley@xxxxxxxxx<mailto:dheasley@xxxxxxxxx
> <mailto:dheasley@xxxxxxxxx>>>, Kiran Malancharuvil
> <kmalancharuvil@xxxxxxxxx<mailto:kmalancharuvil@xxxxxxxxx<mailto:kmalan
> charuvil@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.
> GSS: I disagree.  The GCO  would need to freelance beyond the stated
> bounds of the question to do new research.  As I'm sure you are aware,
> when a contract asks a party to make a representation or state
> something as to "knowledge", that is only based on what they know
> (actual knowledge) and not what they should have known (constructive
> knowledge) or would find out if they did some research (due inquiry).
> I think "aware" here works like a "knowledge" limitation.  If we want
> the GC to tell us more than what they happen to know now, we need to
> specify that their "awareness" comes after due inquiry, or remove the
> reference to "awareness" altogether.
>  DWM: This is not a contract negotiation. I would leave It up to the GC
> to decide what to do 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.
> GSS:   How can (a) or (b) happen, except under the authority of ICANN?
> The "by or under the authority of ICANN" language is either redundant
> or is creating an artificially high standard (that the law must mention
> ICANN by name).  Either way, it shouldn't be there.  There are
> certainly not years of research required to get an understanding of
> what is out there - maybe a solid week or two of fulltime research.  An
> "opinion" without research isn't going to be worth much, unless the GCO
> is already very well informed on international law relating to IGO/INGO
> names.
>  DWM: The wording defines the question. This WG is trying to decide
> what is the scope and purpose of our work.
> 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.
> GSS:  Well, touché.  Now there doesn't need to be a basis in law or
> policy for this distinction, because it's "in the charter." Due to the
> press of other business I did not look at the proposed charter as
> closely as I should have, so I suppose it's my fault.  I have just come
> from the Berlin Wall site, and I am now deep in formerly Soviet-
> controlled Poland, so this seems apropos.  I have to say that, by
> adopting this artificial distinction, we have probably irreparably
> hobbled the work of this group.  At the very least, we have let process
> dictate outcome. Perhaps you would indulge and explain why this
> distinction makes sense, other than "it's in the proposed charter."
> DWM: The wording is also in the GNSO motion. It defines the scope of
> the PDP and the work of the WG.
> 
> 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.
> GSS:  We shall see.  Regardless, they are not uniquely competent to do
> so, as they are in connection with ICANN documents.  So, whatever they
> come up with would have no greater weight than the opinion of any other
> competent counsel.
>  DWM: This is a GNSO PDP, not an international convention. We need
> guidance from the ICANN GC.
> 
> 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<mailto:gshatan@reeds
> mith.com<mailto:gshatan@xxxxxxxxxxxxx>>
> www.reedsmith.com<http://www.reedsmith.com>
> 
> 
> 
> 
> 
> From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-
> ingo@xxxxxxxxx<mailto: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<mailto: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> [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<mailto: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<mailto:jbikoff@xxxxxxxxx<mai
> lto:jbikoff@xxxxxxxxx>>
> 
> 
> 
> 
> 
> From:owner-gnso-igo-ingo@xxxxxxxxx<mailto: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<mailto: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<mailto:mail@xxxxxxxxxxxxx<
> mailto:mail@xxxxxxxxxxxxx>>
> @berrycobb
> 
> 
> 
> 
> 
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