[discuss] Second draft - proposed Netmundial submission

Mon Mar 3 18:00:34 UTC 2014

Mike:

Thanks for your email.

My personal view is that patent trolls are a scourge and that the law needs to be changed to deal with the issue.  This has been recognized from President Obama on down.  (Caveat: Not every "non-practicing entity" (i.e., an entity enforcing a patent they do not exploit themselves) is necessarily a troll.)  However, I think patent troll litigation is an outlier.  (Certain plaintiff class actions and shareholder derivative suits might also fit these concerns, but the latter would not be relevant to [ICANN] and the former seems unlikely (and if it occurs, might not be frivolous).)  I don't deny that parties in the US seem relatively more likely to commence litigation than in some other jurisdictions (access to the courts can be considered a "freedom").  However, litigation that is truly vexatious, frivolous or in bad faith often results in costs and sanctions (and may hit the attorney as well as the litigant), and is relatively rare.  (Bad cases may be another thing.)  As a result I think the "let's avoid the US because it's so litigious argument" is more FUD than fact, and not by itself a reason to avoid a US entity.  Furthermore, avoiding a US entity will not avoid US jurisdiction.

More specifically to the case at hand, ICANN has actually had a fairly quiet litigation history, and I don't know if any of those cases have involved the IANA function.  I also don't know of any that could be considered rogue, although a couple have been relatively far "out there."  So the idea that [ICANN] needs to be protected from litigation does not seem to be grounded in any concrete reality.  And if [ICANN] deserves to be sued, that's a differently problem entirely.

As noted above, the protection from vexatious, frivolous and bad faith litigation is statutory, and a case that is above these bars but lacks significant merit is likely to be disposed of on a motion to dismiss.  That is not to say that there are no litigation horror stories, and of course even meritorious litigation can be very expensive.

Off the top of my head, I can't think of any structures that provide protection from frivolous litigation as a general matter.  (There are structures designed to shield entities higher in the corporate chain from litigation, and specific cases such as the use of bankruptcy-remote entities to avoid involuntary bankruptcy, but neither of these seem germane.)

As for indemnification, who are you thinking would be the indemnifying party, and who would be the indemnified parties?  I can't think of a scenario where [ICANN] is indemnified by any other party (except in very specific circumstances under contract) or indemnifies any other party (ditto).  There is certainly no indemnity built into the California "public benefit" (i.e., non-profit) statute that I know of.

Thanks!

Greg

From: Michael Roberts [mailto:mmr1936 at gmail.com] On Behalf Of Mike Roberts
Sent: Monday, March 03, 2014 10:18 AM
To: Shatan, Gregory S.
Cc: Ian Peter; Suzanne Woolf; John Curran; discuss at 1net.org
Subject: Re: [discuss] Second draft - proposed Netmundial submission

Greg -

I believe the points you mention were first contained in a contribution from me some time ago, so I will respond -

- the context in which they appeared was that of comparing possible future makeups for IANA to the current one, i.e, if we change, the new arrangement needs to be as good as or better than current in these areas

- the reference to rogue litigation had in mind such abuses as patent trolls in the U.S.  In general, the atmosphere of litigiousness in the US and elsewhere suggests that forethought be given to the legal base for a new arrangement

- by way of comparison to "robust," one could think of the public benefit statute under which ICANN is currently incorporated, including features such as indemnity protections, etc.  This is not protection from justifiable suit, it is (some) protection from frivolous litigation.

- Mike

On Mar 2, 2014, at 10:52 PM, Shatan, Gregory S. <GShatan at ReedSmith.com<mailto:GShatan at ReedSmith.com>> wrote:

Ian:

Thank you for this.  It does provide food for thought and discussion.

A couple of thoughts and questions come to mind, and I'd be curious to hear what your or others think.

First, I don't think it is accurate or supportable to say that the direction you propose has "widespread support" from the "private sector."  My initial thought is that the private sector is largely unaware of the issue.  To the extent that the private sector is aware of the issue, I think many don't see the current structure as a problem (and if they do, they may not see ICANN internalization as the solution).  Of course, there are a number of subsectors within the private sector, and opinions may differ within the private sector.

Second, the focus here and elsewhere on "protection of the root zone from political or other improper interference" seems to be overblown.  There don't seem to be any particular examples of political influence on the root zone (even post-Snowden).  To the extent this is based on vague concerns about "trust" and the US Government, I have seen no evidence of USG interest in (much less incursion into or exploits aimed at) the root.  It seems to me that parties who have long wished to change the current root management scheme have seized on the current climate to try to gain ground, without satisfying any of the leaps of logic needed to get there.

Third, I am curious what you are thinking of when you mention "rogue litigation attacks".  Are there past or current litigation matters that induced you to include this point?  If not, and it's just a theoretical possibility, what kind of litigation are you thinking of?  And what constitutes "rogue litigation"?

Finally, by a "legal structure that is robust" against such attacks, are you suggesting an entity that somehow cannot be sued anywhere in the world?  This seems rather dangerous (as well as highly unlikely).  Or is your primary concern/target to move away from the current structure where ICANN is a US corporation and this amenable to suit in the US?

Thanks for considering these points.

Greg Shatan

From: discuss-bounces at 1net.org<mailto:discuss-bounces at 1net.org> [mailto:discuss-bounces at 1net.org] On Behalf Of Ian Peter
Sent: Sunday, March 02, 2014 6:11 PM
To: Suzanne Woolf; John Curran
Cc: discuss at 1net.org<mailto:discuss at 1net.org>
Subject: [discuss] Second draft - proposed Netmundial submission

Thanks to everyone who has made suggestions about this, both on and off list.
As a result I have made a few changes, as below. I still feel perhaps the best path is for me to submit this as an individual to keep things less complicated, unless there is a strong feeling otherwise. The deadline is March 8.
My main objective here is a roadmap; some simple steps in the right direction that will help to a achieve a good outcome. If this is made too complicated, it will go nowhere. Plenty of time to examine complexities later when we have an agreed path forward.
Here is my proposed new wording. All comments and suggested improvements welcome.

Ian Peter

DRAFT FOLLOWS

Roadmap (and principles) for internalisation of the former  IANA functions under a multistakeholder governance model involving  ICANN and associated technical organisations.

This roadmap concentrates on one internet governance issue only - the future of the IANA functions which have been the subject of much past discussion because current arrangements are seen by many to be outside of the preferred multistakeholder model.

Indeed, IANA itself was established  in an era before most current internet governance institutions (eg ICANN) were in existence. The emergence of a trusted global body to take over these functions was envisaged at the time and this submission suggests that we can now proceed to transfer remaining functions to a multistakeholder model of management.

ROADMAP

This roadmap suggests that the IANA functions, though necessary processes in the secure and authoritative functioning of the Internet, no longer need a separate identity and would more productively merged with similar functions under the auspices of ICANN and associated technical bodies. Subject of course to many concerns about details, this direction appears to have widespread support from governments, civil society, technical community, and private sector.

In order to achieve this desired change efficiently and productively, the following roadmap is proposed.

1.       ICANN should be requested to prepare a proposal for management of the previous IANA functions within the multistakeholder model of internet governance, including among other considerations the following criteria:

(a) protection of the root zone from political or other improper interference;

(b) integrity, stability, continuity, security and robustness of the administration of the root zone;

(c) widespread [international] trust by Internet users in the administration of this function; (d) support of a single unified root zone; and

(e) agreement regarding an accountability mechanism for this function that is broadly accepted as being in the global public interest."
2. Preparation of the proposal should involve discussion with all major stakeholder groups, with a completion timetable for a first draft for discussion at the Internet Governance Forum in Turkey in September 2014.
3. To expedite completion in a timely manner, it is suggested that outside consultants be engaged to prepare the discussion paper (proposal) in consultation with major stakeholders.

4. The solution must have the following characteristics

(a) offers a legal structure that is robust against rogue litigation attacks

(b) is aligned with the Internet technical infrastructure in a way that supports innovative, technology based evolution of the DNS .

(c) is an inclusive model
(d) is a demonstrable improvement on current processes in this area

END DRAFT

From: Suzanne Woolf<mailto:suzworldwide at gmail.com>
Sent: Sunday, March 02, 2014 8:52 PM
To: John Curran<mailto:jcurran at istaff.org>
Cc: Ian Peter<mailto:ian.peter at ianpeter.com> ; mailto:discuss at 1net.org
Subject: Re: [discuss] Thoughts welcome on proposed Netmundial submission

On Feb 28, 2014, at 12:00 AM, John Curran <jcurran at istaff.org<mailto:jcurran at istaff.org>> wrote:

On Feb 27, 2014, at 7:32 PM, Ian Peter <ian.peter at ianpeter.com<mailto:ian.peter at ianpeter.com>> wrote:

Ian -

   Very nice writeup...  I have just a couple of comments, which you may use or
   discard as desired.

 ROADMAP
 This roadmap suggests that the IANA functions, though necessary processes in the secure and authoritative functioning of the Internet, no longer need a separate entity and would more productively merged with similar functions under the auspices of ICANN.
It is an interesting formulation of the problem statement...   At present, I would describe
the IANA functions as "a set of tasks" rather than an "entity", and hence would instead
phrase the purpose of a roadmap as:

"This roadmap suggests that the IANA functions (which are necessary for the secure
and proper functioning of the Internet) that are currently administered by ICANN per
USG contract should remain at ICANN and be performed instead under its auspices
via the strengthening of accountability mechanisms to meet the global public interest."

I like Ian's initial note and this suggested refinement, but would also like to see some clarification regarding those IANA functions which do not relate to the DNS root.

Subject of course to many concerns about details, this direction appears to have widespread support from governments, civil society, technical community, and private sector.
 In order to achieve this desired change efficiently and productively, the following roadmap is proposed.
1.       ICANN should be requested to prepare a proposal for management of the previous IANA functions within the ICANN multistakeholder model, bearing in mind the following criteria:

(a) protection of the root zone from political or other improper interference;

The above criteria confuses me - are we referring to ICANN's DNS policy development role,
or performance of the IANA functions?   The latter are technical tasks in registry administration
and the most important criteria would be that ICANN continue to implement all IANA registry
functions in accordance with the respective policies (I guess one could further elaborate to
point out that operating per respective policies means free from political or other interference,
but that really is secondary to making sure that the IANA follows IETF protocol, RIR IP, and
ICANN DNS policies, both presently adopted and as revised in the future.)

Right. In particular, one would hope that proper administration of the IANA functions includes protection from "improper interference" in any  of them as an initial requirement.

The IANA functions do not consist only of those related to the DNS, yet many of the suggestions and assumptions we see tend to be limited to issues and mechanisms that may apply more closely to DNS-related IANA functions than to others. It would be helpful to be clear whether we're talking about the DNS-related functions only, or the full scope of IANA's responsibilities to the internet community.

best,
Suzanne

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