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

[Paul Diaz <pdiaz@xxxxxxx>]

+1

This debate is getting pretty arcane for ICANN policy work.  The WG would be 
well-served by the input of ICANN's General Counsel early in the policy 
development process for the reasons Chuck sets out below.

Best, P

PAUL DIAZ
Director of Policy
.ORG, The Public Interest Registry
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On Nov 13, 2012, at 11:16 AM, Gomes, Chuck wrote:


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<mailto: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><mailto:GShatan@xxxxxxxxxxxxx>>
Date: Tue, 13 Nov 2012 02:55:32 -0500
To: David Maher <dmaher@xxxxxxx<mailto:dmaher@xxxxxxx><mailto:dmaher@xxxxxxx>>, 
CHUCK GOMES
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx><mailto:cgomes@xxxxxxxxxxxx>>, 
Jim Bikoff
<jbikoff@xxxxxxxxx<mailto:jbikoff@xxxxxxxxx><mailto:jbikoff@xxxxxxxxx>>, 
"gnso-igo-
ingo@xxxxxxxxx<mailto:ingo@xxxxxxxxx><mailto:gnso-igo-ingo@xxxxxxxxx>" 
<gnso-igo-
ingo@xxxxxxxxx<mailto:ingo@xxxxxxxxx><mailto:gnso-igo-ingo@xxxxxxxxx>>
Cc: David Heasley 
<dheasley@xxxxxxxxx<mailto:dheasley@xxxxxxxxx><mailto:dheasley@xxxxxxxxx>>,
Kiran Malancharuvil
<kmalancharuvil@xxxxxxxxx<mailto: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: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@xxxxxxxxxxxxx<mailto:GShatan@Reed
Smith.com<http://Smith.com><mailto:GShatan@xxxxxxxxxxxxx>>>
Date: Mon, 12 Nov 2012 19:38:08 -0500
To: CHUCK GOMES
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx><mailto:cgomes@xxxxxxxxxxxx<mailto:cgomes@verisign.
com<mailto:cgomes@xxxxxxxxxxxx>>>, Jim Bikoff
<jbikoff@xxxxxxxxx<mailto: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:ingo@xxxxxxxxx>><mailto:gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-
ingo@xxxxxxxxx<mailto:ingo@xxxxxxxxx>>>" 
<gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx><mailto:gnso-igo-
ingo@xxxxxxxxx<mailto:ingo@xxxxxxxxx><mailto:gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-
ingo@xxxxxxxxx<mailto:ingo@xxxxxxxxx>>>>
Cc: David Heasley
<dheasley@xxxxxxxxx<mailto:dheasley@xxxxxxxxx><mailto:dheasley@xxxxxxxxx<mailto:dheasley@xxxxxxxxx
<mailto:dheasley@xxxxxxxxx>>>, Kiran Malancharuvil
<kmalancharuvil@xxxxxxxxx<mailto:kmalancharuvil@xxxxxxxxx><mailto:kmalancharuvil@xxxxxxxxx<mailto:kmalan
charuvil@xxxxxxxxx<mailto: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@xxxxxxxxxxxxx<mailto:gshatan@reeds
mith.com<http://mith.com><mailto:gshatan@xxxxxxxxxxxxx>>
www.reedsmith.com<http://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:ingo@xxxxxxxxx><mailto:owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-
igo-ingo@xxxxxxxxx<mailto: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:ingo@xxxxxxxxx><mailto:gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-
ingo@xxxxxxxxx<mailto: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:ingo@xxxxxxxxx>><mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-
gnso-igo-ingo@xxxxxxxxx<mailto: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<mailto: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<mailto:jbikoff@xxxxxxxxx<mai
lto:jbikoff@xxxxxxxxx>>





From:owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-
ingo@xxxxxxxxx<mailto:ingo@xxxxxxxxx>><mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-
gnso-igo-ingo@xxxxxxxxx<mailto: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<mailto: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<
mailto:mail@xxxxxxxxxxxxx>>
@berrycobb





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