Subject: [Ianaplan] comments on draft-ietf-ianaplan-icg-response-01

From: Andrew Sullivan <[email-masked]>
Date: Thu, 23 Oct 2014 17:55:06 -0400

Dear colleagues,

I have read draft-ietf-ianaplan-icg-response-01.  I have some
comments.  I submit these in my capacity as an individual
participating in the IANAPLAN WG.

I am uneasy with the response to 

   >>>
   >>> A description of any overlaps or interdependencies between your
   >>> IANA requirements and the functions required by other customer
   >>> communities
   >>>

It says in part, 'the IETF considers "overlap" to be where there is in
some way shared responsibility for a single registry across multiple
organizations.'  Yet it uses as an example, "The IETF has specified a
number of special use registries with regard to domain names."  I do
not believe that the IETF and ICANN have shared responsibility for a
single registry in that case.  ICANN is responsible for the root zone
registry.  The labels in the special-use registry
(http://www.iana.org/assignments/special-use-domain-names/special-use-domain-names.xhtml#special-use-domain)
that _could_ be in the root zone are all, in fact, labels explicitly
excluded from appearing in the root zone registry.  In this sense,
IETF is not working in the same registry as ICANN, but is instead
defining the extent of the namespace of that registry.  This is a
subtle but important difference.  I do not believe there is in fact an
overlap here as defined in the I-D.

An overlap would come in case the IETF said, "Here is a special-use
name, and it must resolve on the Internet, and it is one label long."
An overlap would also come in case the IETF allocated a special-use
name and restricted it from resolution, and that label were already in
the root zone.  But such cases have not happened, and I think the
correct way to interpret this case is that we have to co-ordinate to
_avoid_ an overlap.  I'd like to see the first bullet say, "These
registries require coordination with the Generic Names Support
Organization (GNSO) in order to avoid an overlap."

I think a similar state of affairs obtains for the second-last bullet,
about IP spaces.

   >>>
   >>>  Jurisdiction(s) in which the mechanism applies and the legal
   >>>  basis on which the mechanism rests.
   >>>

   IETF Response

   This mechanism is global in nature.  The current agreement does not
   specify a jurisdiction.

I am in support of this text, and I would not like to see it replaced
by a proposal for a jurisdictional or specific dispute-resolution
mechanism.

In particular, I think that the text

   To address a desire by some members of the IETF community to have
   mechanisms that allow for additional dispute resolution between the
   IETF and the current IANA protocol registries operator, the IAOC is
   asked to conclude a supplemental agreement regarding jurisdiction and
   any necessary dispute resolution mechanisms that are mutually
   acceptable to the parties.

is a bad idea, and should be removed.

I think that 

   To address concerns regarding appropriate contingencies to transition
   to another operator, IAOC is asked to conclude a supplemental
   agreement that-

   1.  captures provisions C.7.3 and I.61 of the current IANA functions
       contract between ICANN and the NTIA [NTIA-Contract]; and

   2.  requires the transfer of any associated marks and identifiers to
       a subsequent operator.

is ok, because as nearly as I can tell it asks only for things already
in place under the existing agreements and simply moves those
arrangements around.  I know that there have been some people who
really want to insist that iana.org goes to some neutral 3d party.
The problem I see with that is that I don't see how it helps in the
case (which we all earnestly hope never happens) where the protocol
parameters are separated from other registries.  Why does that class
of registry get to keep IANA?  I bet it doesn't.  So stricter language
is not necessary and might be harmful.

If people seriously think that we need to mitigate any danger from
having iana.org embedded in existing documents, I think there is a
better way to solve that than trying to move the IANA mark and
iana.org around.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: "Peterson, Jon" <[email-masked]>
Date: Thu, 23 Oct 2014 22:23:10 +0000

I think Andrew's proposed changes look very helpful. And,

>I know that there have been some people who

Agreed. As an organization, I think we sometimes get too caught up in
protecting our institutions rather than in preserving the flexibility we
need to react to changing events. If events turn in directions that we
hope they won't, I'm not particularly worried about the consequences of
IANA's role in documents we published in the past - I'd be much more
interested in what structures will best serve us as an organization going
forward. Anything we stipulate in response to the ICG that binds us too
strongly to existing practices will not play to our strengths, our fear.

Jon Peterson
Neustar, Inc.

>
>Best regards,
>
>A
>
>-- 
>Andrew Sullivan
>[email-masked]
>
>_______________________________________________
>Ianaplan mailing list
>[email-masked]
>https://www.ietf.org/mailman/listinfo/ianaplan

---

From: Eliot Lear <[email-masked]>
Date: Fri, 24 Oct 2014 08:20:08 +0200

Hi Andrew,

> Organization (GNSO) in order to avoid an overlap."

I agree with this point and, barring objection, I propose to make
changes to address your point.
> is a bad idea, and should be removed.

Here there are multiple issues tied into the above text, which others
have supported.  Let's break them apart again just to be clear:

 o dispute resolution

Here the text does not require anything more than a discussion about
whether it is valuable to either party, and so I do not see substantial
harm in its being included.

 o Jurisdiction

The argument put forth to add this text was that if we don't, the first
few million dollars spent in a dispute would be on figuring out the
answer.  That is the argument that has to be addressed.

> is not necessary and might be harmful.

So long as there is agreement that "iana.org" is one of those "marks and
identifiers", I am comfortable with the above.  In my opinion, I believe
the above text is more likely to achieve consensus than other versions
of the text.  However, I would ask that others comment.

Eliot

---

From: Andrew Sullivan <[email-masked]>
Date: Fri, 24 Oct 2014 02:30:09 -0400

Hi,

On Fri, Oct 24, 2014 at 08:20:08AM +0200, Eliot Lear wrote:
> identifiers", I am comfortable with the above.  

As I understand it, under the existing ICANN trademark/IPR rules --
and for that matter under any rules likely to be adopted given the
importance of the IP law constituency at ICANN -- iana.org is all but
certainly guaranteed to be reallocatable as soon as the trademark is
reallocated.  If people really feel this needs to be called out, I
don't care, but it seems like gilding the lily[1] to me.

A

[1]or maybe, gilding the gilt-encrusted decorative carving of a lily,
given that I don't care about the contractual status of the mark in
the first place.  But I know I'm an outlier here.

-- 
Andrew Sullivan
[email-masked]

---

From: "Richard Hill" <[email-masked]>
Date: Fri, 24 Oct 2014 08:59:35 +0200

Dear Eliot,

Thank you for this.  I am generally in agreement with your comments.

> > is a bad idea, and should be removed.

I was under the impression that that text reflected our discussions during the audio conference.  But perhaps my impression is not correct.

In contrast to Andrew, I think that it is important to say something substantive about jurisdiction. So, if the above text is not acceptable to all, then I propose to replace it with the following.

"The IAOC is asked to conclude a supplemental agreement regarding jurisdiction and any necessary dispute resolution mechanisms, taking into account that it may be preferable to specify a neutral jurisdiction such as arbitration in Switzerland."

Please note that I would prefer that the following also be included, but I recognize that there might not be much support for this:

"Further, the IAOC is asked to consider whether it would be appropriate for the IANA function to be legally domiciled in a neutral jurisdiction such as Switzerland, possibily with immunity of jurisdiction."

Please note that my proposals above are consistent with the comments from the Just Net Coalition, which the ICG has transmitted to this group for its consideration, see 32 of the paper referenced at:

  http://www.ietf.org/mail-archive/web/ianaplan/current/msg00423.html 

Thanks and best,
Richard

> -----Original Message-----
> From: Ianaplan [mailto:[email-masked]]On Behalf Of Eliot Lear
> Sent: vendredi, 24. octobre 2014 08:20
> To: Andrew Sullivan; [email-masked]
> Subject: Re: [Ianaplan] comments on draft-ietf-ianaplan-icg-response-01
> 
> 
> Hi Andrew,
> 
> (http://www.iana.org/assignments/special-use-domain-names/special-
> use-domain-names.xhtml#special-use-domain)

---

From: "Martin J. Dürst" <[email-masked]>
Date: Fri, 24 Oct 2014 18:27:31 +0900

> don't care, but it seems like gilding the lily[1] to me.

I agree. At the least, it may be something that the IAOC and the IETF 
Trust can figure out when they actually negotiate the details.

Regards,   Martin.

---

From: Andrew Sullivan <[email-masked]>
Date: Fri, 24 Oct 2014 09:23:08 -0400

> I was under the impression that that text reflected our discussions during the audio conference.  But perhaps my impression is not correct.

It certainly reflects what some people wanted at the interim.  I
argued then, and I argue now, that this level of specification isn't
something we want.  I am prepared to be in the rough, of course, like
anyone else.  So,

> substantive about jurisdiction. So, if the above text is not
> acceptable to all

we don't need text acceptable to all.  We need text that's achieves
rough consensus.

> "The IAOC is asked to conclude a supplemental agreement regarding
> jurisdiction and any necessary dispute resolution mechanisms, taking
> into account that it may be preferable to specify a neutral
> jurisdiction such as arbitration in Switzerland."

It may be preferable also to specify jurisdictions where any of the
bodies are incorporated, to the extent they are, also.  So if we're
going to include instructions to get an agreement about jurisdiction
and dispute resolution, then I am very strongly opposed to specifying
what jurisdiction that ought to be.  I don't think the WG should get
into that kind of instructing of the IAOC.  Also, see below.

>  "Further, the IAOC is asked to consider whether it would be
> appropriate for the IANA function to be legally domiciled in a
> neutral jurisdiction such as Switzerland, possibily with immunity of
> jurisdiction."

I think that's completely off-topic for this, and it's also clearly
outside our charter since it would be a major change to the existing
arrangements and our charter tells us not to do that: "This working
group is chartered solely with respect to the planning needed for the
transition, and is not meant to cover other topics related to
IANA. Possible improvements outside that scope will be set aside for
future consideration."  The recommendation of jurisdiction in the
first proposal also seems to me to be in violation of that term.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: Marc Blanchet <[email-masked]>
Date: Fri, 24 Oct 2014 09:59:27 -0400

Le 2014-10-24 à 09:23, Andrew Sullivan <[email-masked]> a écrit :

> bodies are incorporated, to the extent they are, also.  

I would rephrase as: This suggestion (Switzerland) might be a good idea, but it is not in this forum to handle this.

Marc.

> So if we're

---

From: Milton L Mueller <[email-masked]>
Date: Fri, 24 Oct 2014 14:16:26 +0000

> I agree with this point and, barring objection, I propose to make changes to
> address your point.

Agree with Andrew's critique and look forward to the revised language.

> >
> > [jurisdiction] is a bad idea, and should be removed.
> 
> 
> The argument put forth to add this text was that if we don't, the first few
> million dollars spent in a dispute would be on figuring out the answer.  That
> is the argument that has to be addressed.
> 

Obviously Eliot is right here. 

> identifiers", I am comfortable with the above.  In my opinion, I believe the
> above text is more likely to achieve consensus than other versions of the
> text.  However, I would ask that others comment.

My comment is that the more specific the language, the better; i.e., the more likely it is to clarify the situation and avoid future disputes and wrangling. 

--MM

---

From: Milton L Mueller <[email-masked]>
Date: Fri, 24 Oct 2014 14:16:26 +0000

> I think that's completely off-topic for this, and it's also clearly outside our
> charter since it would be a major change to the existing arrangements and
> our charter tells us not to do that: "This working group is chartered solely
> with respect to the planning needed for the transition, and is not meant to
> cover other topics related to IANA. Possible improvements outside that scope
> will be set aside for future consideration."  The recommendation of
> jurisdiction in the first proposal also seems to me to be in violation of that
> term.

While I don't necessarily agree with Richard's recommendation of Swiss jurisdiction, I think the jurisdiction in which IANA resides or might be incorporated is very much in scope as part of the transition. The RFP specifically asks for that, and generally it's a bad idea for people to try to rule out ideas they don't like by claiming that they are out of scope. Let's debate the merits, not foreclose.

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 25 Oct 2014 08:25:14 +1300

Hi,

I've been reading the recent discussions and my conclusion is that
the bike shed is already painted the right colour, and the small
adjustments being proposed now are rather pointless. I'd be happy to
see the -01 draft agreed, and I will be very surprised if the -02
draft isn't OK too. I would like us to move on.

Regards
   Brian

---

From: Eliot Lear <[email-masked]>
Date: Mon, 27 Oct 2014 15:11:01 +0100

Hi Richard,

>   http://www.ietf.org/mail-archive/web/ianaplan/current/msg00423.html 

It's probably sufficient to state that the IAOC should address the
matter of jurisdiction, without getting into "where" in this document. 
The issue with the above text is that we could spend the rest of the
time going through last call to determine which jurisdictions be
considered, and none of us are lawyers (and on this particular issue, I
won't even play one on the 'net).  I would expect the IAOC to bring
appropriate resources to bear to properly address this issue.

Eliot

---

From: "Richard Hill" <[email-masked]>
Date: Mon, 27 Oct 2014 17:47:58 +0100

Dear Eliot,

I'm OK with the language in 01, which I see is included in 02.

Best,
Richard

> Sent: lundi, 27. octobre 2014 15:11
> To: [email-masked]; Andrew Sullivan; [email-masked]
> > In contrast to Andrew, I think that it is important to say 
> something substantive about jurisdiction. So, if the above text 
> is not acceptable to all, then I propose to replace it with the following.
> >
> > "The IAOC is asked to conclude a supplemental agreement 
> regarding jurisdiction and any necessary dispute resolution 
> mechanisms, taking into account that it may be preferable to 
> specify a neutral jurisdiction such as arbitration in Switzerland."
> >
> > Please note that I would prefer that the following also be 
> included, but I recognize that there might not be much support for this:
> >
> neutral jurisdiction such as Switzerland, possibily with immunity 
> of jurisdiction."
> >
> > Please note that my proposals above are consistent with the 
> comments from the Just Net Coalition, which the ICG has 
> transmitted to this group for its consideration, see 32 of the 
> paper referenced at:
> >