The following are the outputs of the real-time captioning taken during the Tenth Annual Meeting of the Internet Governance Forum (IGF) in João Pessoa, Brazil, from 10 to 13 November 2015. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record.
***
>> MODERATOR: So good morning, everyone. Sorry for being a little bit late ‑‑ not that much for Brazilian standards. It's a pleasure to host this Latin American standards, I have been corrected here by the representative of our government. That's a great way to kick start the conversation.
So we are having this discussion on the last day of the IGF about jurisdiction and we believe this is an important topic for us to discuss, because definitely jurisdiction triggers a number of discussions under the Internet Governance ecosystem, from discussions related to data localization, to discussions related to taxation and definitely from discussions relating to the entities that are part of the Internet Governance ecosystem and ICANN, for instance, being one of those that triggers this discussion.
We believe it is important for us to have this conversation down here in the IGF, taking the opportunity that we have everyone together in the same place for the whole week.
The idea of this panel is to run it as an informal conversation. So, please bear in mind that even though the setting of the room may be, I would say, unfavorable for an informal conversation, that's the way that we wanted to make it, like ‑‑ it's supposed to be a roundtable. So what we are going to do, we are going to pass the floor to our speakers, and then we will just kick off the conversation in short speeches, around ten minutes and right after, that we pass the mic to the audience so we can engage in the conversation around those topics.
We will begin with the conversation around jurisdiction and ICANN, but please feel free to address other issues regarding jurisdiction, because definitely, that localization concerns and taxation concerns, it's concerns that some from the audience discussed it might be interesting to discuss throughout the session right now. So I would like to pass the floor to Pedro Uevo from the Brazilian Ministry of Foreign Affairs to Pedro can start the conversation. So Pedro, please, go ahead.
>> PEDRO: Thank you, Carlos. Thank you, colleagues. Thank you, friends, for being here.
My initial intervention here is bring up context how it was in the CCG, this cross accountability group that was established in the end of last year, and continues to work and will probably continue to work next year as well. Brazil was one of the participants in that group which brought up the issue of jurisdiction, together also with participants, other governments, but also other governments from other sectors. We thought that it was essential to address this topic within the context of this group because we think that jurisdiction directly influences the way that ICANN's accountability process are structured, and operationalized. So the fact that ICANN today operates under specific legislation, of course, it grants the ICANN certain rights, but it also imposes some limits with respect to the accountability mechanisms that ICANN can adopt.
And the mere fact that today the accountability Working Group is thinking about adopting the single designator model as a legal vehicle to ‑‑ to enforce or to grant the community certain powers, this is because the legislation of California, where ICANN is incorporated, allows that, and permits that. So the options that we have been ‑‑ that we have been considering within the CCG accountability group is basically options that are allowed based on the legislation of California. So there is an intrinsic, let's say, relationship between jurisdiction, where ICANN is incorporated in the accountability mechanisms that ICANN can really adopt.
So, however, we during the discussions within the group, because of the time constraints that we have for the transition, the CCWG has decided not to touch this topic of jurisdiction in the first phase ‑‑ during first phase of its work, but rather leave it to the subsequent phase, to the post‑transition phase because, of course, there are many questions that are open and we need have a better understanding of some aspects of the concept of jurisdiction before actually moving forward and being able to give any specific concrete recommendations on that aspect.
However, I think that the preliminary discussions we have had within the group, I think, allowed us to ‑‑ although we have decided to do this topic only next year, I would say, we have within the group reached an understanding that jurisdiction ‑‑ it's not a simple concept, and it is what may call a concept that consists of various layers. So the CCWG has arrived to this understanding that jurisdiction is a multilayered issue and, for example, when you talk about jurisdiction, you may talk about, of course, the place where ICANN is incorporated, all what it entails.
But you can also ‑‑ another aspect that needs to be considered with respect to jurisdiction is also the jurisdiction where ICANN has ‑‑ it's also physically present, not only where it has its headquarters but also the other international offices where ICANN is present. So what kind of implications of that jurisdiction would have open the overall operation of the ‑‑ of ICANN? That's another aspect.
The third aspect is the are contracts, for registers and registries. This is another aspect of jurisdiction, another element of this complex concept that needs to be also taken into account.
The fourth element is that the group has considered ‑‑ and this list that I'm just presenting here is, of course, not exhaustive. It's just up to this point, that's what we have agreed on, that should be considered. So a fourth, element, of course, we need to consider the ability to sue and be sued in a specific jurisdiction, for example, for action or inaction of ICANN staff, for redress, review of core decision and eventual IRP and other aspects as well.
The fifth element that the group has considered is the relationship between ICANN and national jurisdictions for particular domestic issues, for example, ccTLD managers or protective names for international institutions, country and geographic names.
So this is ‑‑ let's say, all this ‑‑ five elements that I have just mentioned showed the complexity of this concept and basically, it provides us a foundation for the CCWG to work ‑‑ to start its work ‑‑ it's intended to start its work on this topic from 2016 on. So it presents certain elements that would form, let's say, a base for us to work on this topic.
So my initial intervention is just to present that. I think it's very important to bear this in mind, that this is a multifaceted concept and this is at least how the CCWG is looking at it.
>> MODERATOR: Thank you, Pedro, for your comments and I would like to pass the floor to Professor Jan Scholte from the School of International Studies at the School of Gothenburg.
>> JAN SCHOLTE: I have been involved in the IANA discussions and the IANA discussion, as a so‑called independent accountability advisor. So what I'm speaking of you is less of a professor of Gothenburg and my observations of what has happened in the IANA transition.
So what has happened to the issue of ICANN jurisdiction in the course of the IANA transition, that's what my comments will look at and make a series of seven points, I think. First to pick up on what Pedro just talked here about the scope of the issue of jurisdiction, what we're actually talking about what we are talking about jurisdiction and the IANA transition. And secondly the arguments that have been made for keeping the status quo in the sense of the incorporation of ICANN jurisdiction in the state of California, with its headquarters in the city of Los Angeles.
Then note thirdly some of the objections that have been made to that situation.
Fourthly, some of the suggested alternatives that have been voiced in the course of the discussions.
Fifth, that those alternatives have been pushed to the long term by arguments of pragmatism, so that in the end, the sixth point, the jurisdiction that used to be in the Affirmation of Commitments, Article 8 has been moved into the new bylaws of the ICANN in the transition. So the US jurisdiction, the California jurisdiction has been reaffirmed but now in the bylaws of the ICANN, and that defers the issue of are jurisdiction.
There's different aspects in jurisdiction. The one is where ICANN is located. There's also issues where remedies related to the contract where the ICANN might have. Could we go to the courses of another country and that sort of ‑‑ that sort of thing.
So a lot of this focus tends to be on the issue of where the headquarter is located but jurisdiction covers a number of issues. The US government has been very firm in saying it will be incorporated in the state of California. On the issue of where would you seek the redress for various contractual arrangements that involve ICANN, there the position has been more relaxed and you might go elsewhere.
Really the arguments for the most part many people in this process have said the status quo, in terms of where ICANN is located is not up for question or at least that has come from a number of areas including the NTIA administrator the chief executive of ICANN, when he spoke to the Senate in February of 2015, that ICANN was not expected to move from the US. He did not say it won't, but it was not expected, which was slightly softer language.
That set up the expectation and I know in the CWG, this was the negotiating forum for the new contract regarding the names functions, when certain members attempted to raise the jurisdiction issue as a fundamental issue to be argued about, that was effectively silenced, I would say.
We flag the issue of jurisdiction of moving ICANN out of the US, we can stop right now as in this transition discussion will not go anywhere. That really was saying that this was a strong message coming from a number ‑‑ from a number of quarters that this was not the time to raise the issue of moving ICANN through jurisdiction out of the US and the state of California.
Now some objections were raised nevertheless, by the Brazilian government representatives in ‑‑ in the GAC and the Government Advisory Committee and also in the CCWG as Pedro has eluded to.
So there were arguments, that you know, jurisdiction issue was not adequately addressed and there was an act to push this. The government of China behind the scenes was not terribly pleased with the prospect at the end of the IANA transition that the Chinese actors would be subject to the laws of California and I guess, you know, that might be a little bit in reverse in the American companies might be subject to the laws of China. So anyway, there was some ‑‑ some quieter discomfort expressed there. I would say the third place was the civil society groups in India, who also raised the jurisdiction, the location of ICANN and were not happy with the idea that that should continue.
The problem was that then you had to say, well, okay if you are going to move the jurisdiction out of the United States and out of California, then ‑‑ then what are you going to do instead? What would be the alternatives? One alternative that was circulated was the idea that you would have an ‑‑ that you would make ICANN a sort of international nongovernmental organization with a quasi governmental status, for example.
The other suggestion was that the US government would have a new sort of arrangement with ICANN a bit like it has agreements with the World Bank or the United Nations or the International Monetary Fund so intergovernmental organizations on US territory but nevertheless under an international treaty sort of situation. The suggestion was that you could stay in the US but then have a different kind of status of that kind.
Then there was some attempts to ‑‑ in transferring the jurisdiction wording from the Affirmation of Commitments with the US government in transferring that into the bylaws of the ICANN to put the wording in such a way that the US government was not named, but rather just the requirements of jurisdiction would be named without naming the US government. I think are ‑‑ but that attempt failed.
Instead, you got a lot of arguments coming from the ‑‑ on the lines of pragmatism, on the lines of pragmatism, saying don't raise the jurisdiction issue now. It's not the time it will threaten the transition as a whole. People said things like, what is a relocation from the USA going to deliver? There's no time to consider this now. We have to identify that there's an issue of jurisdiction that requires us to move.
Some people say, well, keep the devil you know, don't go to a country where the companies are regularly nationalized. So various pragmatic arguments came and said, don't talk about this.
And in the end, those kind of arguments, I think won out and the bylaw that has been discussed more or less takes the Article 8 from the Affirmation of Commitment which commits to have ICANN to be in Los Angeles and be subject to the California law, that is incorporated into the bylaws as in the CCWG proposal.
The one thing that proponents of a jurisdiction shift might take some comfort in, I guess, if that's what they want to do is that when it was raised, the proposition that the location of ICANN in the state of California should be made a fundamental bylaw, as opposed to a regular bylaw, and a fundamental bylaw would be much harder to change, then the CCWG collectively said that they did not want that. The only voices that were really heard at least in the Dublin meeting for a fundamental bylaw came from places like the Heritage Foundation and the like, where someone might expect to hear such things.
So now we have the end in sight. And in the end it looked like the jurisdiction of California will be written into the bylaws of ICANN, which means that by accident or design the US government has managed to keep the jurisdiction in the United States, and rather than that jurisdiction being in the United States are by the unilateral voice of the US government, it's actually got its permanent jurisdiction in the United States with the blessing of the global multistakeholder community.
So that as quite ‑‑ in a sense is quite a political move.
So now it's ‑‑ now it's to work stream two, so called work stream two. So it means the jurisdiction is an issue, it's an accountability issue. It will be discussed.
It will be discussed, though, not in the context of the immediate transition, but the so‑called work stream two in the year or two after the transition. We will see what type of arguments it goes from here. It will go that the jurisdiction of the state of California is in the bylaws.
Thanks.
>> MODERATOR: Thanks for that, Professor Jan.
And with that, I pass the floor to Finn Petersen, representative from the Danish Business Authority, just composing this very unusual Brazilian Nordic panel that we have here in the morning. So please, Finn, take the floor.
>> FINN PETERSEN: I'm a representative from the government of Denmark. We have. Layer approach, and you have heard from Jan what have happened in different considerations within the CCWG. So I won't repeat that but I will then try to at least give what have we from the Danish government been thinking in this process.
First of all, in an institution like ICANN, is of course, there to serve the global public interest, and as such, this is important in the question of jurisdictions is important for governments. Including the Danish government.
So as Jan said, during the process there was at certain times the attempt to nail down very firm the location of ICANN by being in California, and passing as fundamental bylaws. From our point of view, we didn't think it was appropriate. We would like to see that there's the flexibility so that it ‑‑ if ever in the future should be necessary, the community of ICANN to have the possibility to move ICANN out of California, out of US so that's our fundamental view points. It's important with this flexibility. Then the question comes do we want to use that flexibility. And the flexibility is no.
The answer is no. At least at the moment. We have had ‑‑ looking from the government point of view, no problems with the jurisdiction during the last many years. I have never heard and we have never heard from any Danish business that it causes any problems or difficulties. So why try to change something which apparently at least from our point of view are well functioning. So although one can have theoretical discussions and considerations, then from a practical point of view, it is not foreseeing now in the near future and even in the longer future, but, one, of course, never knows. We need to keep the flexibility.
But what then we are going to discuss, as has been said here in also the next year in work stream two, and, of course, we are ready to look on other possibilities or looking for what criteria should be fulfilled. If one should move ICANN, the NCI criteria of openness, of flexibility and security of a network, of the multistakeholder model that must be secure and the location must adhere to those principles. That is important.
And now we are working on new governments model for ‑‑ for ICANN. And, of course, in a new jurisdiction that should also be possible if we are not going to change or have other ideas of government model. So that is also important. Of course, other things is that the place you are located, if it could be, of course, under international framework, but it should be a staple and legal certainty in that country, the country of good infrastructure, good taxation system is ‑‑ is important and, of course, it's important with transparency that you have a system with low the jurisdiction of where you are located. There are many arguments. If I say the transparency and good infrastructure, and legal certainty, I will say Denmark! Denmark! We are on the top of the transparency index. So ‑‑ so maybe I will be persuaded to go into that discussion in the future with more weigh. That was a little joke. We think there's no scope, but we will, of course, look into what other communities and government would like to work on.
We perhaps think at this time, there's much more pressing things. I think the diversity issue is much more important to solve in the near future. So we are all part of the ICANN community have the necessary divergency is, that is for our point, much more important and a better way to secure also the relationship with looking at the appropriate public interest.
And, of course, we can see many things in ICANN and the work going on, that if you are an English speaking person, you have certainly had advantages, if not very big advantages to enter into those discussions. So there's other things which are fundamental, which give you and me as government equal opportunity to participate in ‑‑ in the future of ICANN and the Internet.
So that will be my remarks. Thank you.
>> MODERATOR: Thank you, Finn. With, that I pass the floor to Tobias Mahler, Associate Professor for Norwegian Research Center for Computer and Law.
>> TOBIAS MAHLER: Thank you very much. Good morning, everybody. So a lot has been said already and I will try not to repeat these aspects. My perspective is that I would like to start off by making a few distinctions, a few definitions are perhaps in order, and from that on, we might look at what are the options that has already been mentioned, but really, the question about options seems to point in the direction, what are the solutions and if we talk about solutions, it would also be good to understand what is the problem. So really an understanding of what is the problem we are trying to solve, what is the problem we are having, and maybe there are different kinds of problems and different kinds of solutions and ‑‑ and so there might be some kind of symbolic solution to part of the problem and then real world solutions in other fields, and maybe we have more to work with than just one aspect of location.
So I will focus primarily on ICANN issues.
So if we start with a few definitions, I think it would be useful to distinguish jurisdiction, applicable law, and enforcement. Those three aspects.
So jurisdiction can be defined as authority to regulate or adjudicate a matter. That could be a government or a court and there's always some kind of area for that authority. It can be geographically determined, or in terms of subject matter.
So jurisdiction is the starting point here. We also have applicable law. So that's the law this is used to resolve a certain issue. And you can have a situation where you have a court in Germany applying laws from Kenya or the US. So all of these things are possible, and in a sense, you have also some freedom to define the applicable law, for example in ICANN's contracts they can decide what laws will be applicable and there is much more freedom that has ‑‑ than what has been used so far.
So in the context that you could decide that we want the laws of Switzerland and that might be a possibility.
The third aspect, I wanted to mention is related to the issue of enforcement. And this is really about the exercise of authority, which is enforced through some power mechanism, and particularly when there is also some effect on other territories or other jurisdictions. So you might have enforcement action in ‑‑ sorry, in California affecting Chinese users or the other way around. So enforcement actions might actually also affect ICANN in relation to other locations than Los Angeles. So those aspects might be relevant to distinguish. So I think all of the three perspectives, jurisdiction applicable law and enforcement are actually things we should address here and areas where we might look for different options or solutions.
But really, when we talked about options it has already been said that moving ICANN is not really politically realistic in the current process. Politically, I don't know really if it's necessary. In terms of an international standard ‑‑ sorry, an international status for ICANN, I'm not really sure such a status really exists. So this is really about categorizing an organization. You can categorize it as one thing or as something else, and based on that categorization, it will have certain legal consequences. So typically, we have the category of intergovernmental organizations or then we have nongovernmental private organizations NGOs and in some ‑‑ in some countries, it is possible to add an international standard to a private organization, such as is the case in Switzerland.
So we have those two types of big categories, intergovernmental and private organizations and private organizations are as a starting point subject to the regulation locally, but there might be certain exceptions. There might be certain immunities. So one of the advantages in ‑‑ in Swiss law is that you can get certain immunities and that means that if there is a legal issue, you might say, okay, we are immune here. We have an international status. And under Swiss law, that's possible as I understand both for IGOs and for other international organizations which is not clearly defined, not really for nongovernmental organizations.
This brings me to the question, what is the problem? Is the problem really that we lack an immunity. Is the problem that the accountability mechanisms in ICANN are partly determined by the laws of California? Is there any real national regulation that impacts California legislation that really impacts the idea? Yes.
Of course, it would have been easier for ICANN if lotteries had been easily permitted so we would have avoided the problem of digital archery, but it's not really a big issue in relation to the main system.
While there might be some poor decisions, and that could be a problem. So if the courts said that, well, okay, you have to manage this in a certain way, then that could be a problem, but my impression so far is actually that US courts have been very cautious in terms of treating ICANN and in terms of treating Domain Name System issues. The recent case is the Iranian ccTLD but also issues related to antitrust and competition laws where ICANN has usually been able to evict local laws or avoid any of the problems there.
So the question is what really is the problem and how much of it really boils down to a symbol of US power and how much of it is reality and what part of that really can we do something about.
We need to understand what parts of Californian law are really a problem for ICANN? So it would be good to have a list of those issues, and bring them on the table and see what can we do with them. Because then we can actually decide whether it's worth going through the full effort of solving the problem. We first need to understand the problem.
We might also ask ourselves ‑‑ and it was one of the questions in the ‑‑ in the invitation to this workshop, whether a specific legal presence of an institution is actually relevant or if it's irrelevant as long as there is a predictable and stable regime and my first impression seems to be more on the side of actually as long as we have a stable and predictable regime, we are doing quite well and I'm not really sure that the success story of ICANN had ‑‑ would have been as ‑‑ as good as it has been if ICANN had been situated in Berlin, Vienna, Paris, Geneva, Beijing or Moscow. So I'm not really sure that that would have been so much better.
So ‑‑ so the question is, again, do we need ‑‑ is there a real need for these immunities which would be possible to get under Swiss law? Much of that is a bit uncertain. It's uncertain whether one would be able to get those immunities in the first place, because it's not really clear what other international organizations are under this Swiss Guslant law and it's not really ‑‑ many of these immunities are actually related to financial issues which are really perhaps not biggest concern.
So I'm not really sure what we would get from this. But I think the ‑‑ one of the areas where we could have a greater discussion is whether it might be useful to have some of the applicable laws for ICANN's contractual network, more globalized. So we have already seen in the new gTLD process that for ‑‑ for normal applicants, the default was that litigation will be held in a court located in Los Angeles County, California. But then there is a special rule for intergovernmental organizations where the location is Geneva.
So there is already an opening for that, and we might be in a position to actually think about what are the options and should we diversify a bit there and ‑‑ but also, we would have to look at the government benefit of that. I think I will leave it at this for now.
Thank you.
>> MODERATOR: Thank you, Tobias for your presentation. With that, we will conclude first part of our session and now I would like to open the floor to the audience so that we can raise questions to our panelists.
Let me just ask for a mic so that I can ‑‑ we can pass it back. I would ask you to say your name and affiliation. And the first question comes from Carlos Affonso Souza who said received a very important prize from APC for his 21st anniversary.
(Applause).
It's great to see you, Carlos, in great shape in the morning right after receiving the award. So please go ahead.
>> AUDIENCE MEMBER: You know, I am 70 years old. So any emotion might disable my capacity to think.
(Laughter).
>> MODERATOR: Come on.
>> AUDIENCE MEMBER: I would like to make a short comment on the last speaker. I don't know your name. I arrived late at this session. I am very sorry.
Hello?
I understand everything you said in terms of nothing happened so, so far so good, et cetera. But there is a clear political and geopolitical problem potentially ‑‑ potentially, you know. And there have been proposals in the IANA transition process to try to cope with that without transferring ICANN to another jurisdiction.
We understood so far that there's a very strong opposition to any independent supervision, alternative supervision, that is not based in the US, and other than ICANN. My question is, is it possible to have an independent organization, outside of the US, besides ICANN that is under the US and California laws. You mentioned the English international organizations which are able to bring any potential litigation regarding the domain names to Geneva. The other ones know. It's interesting. This should ‑‑ it seems to be a journey.
It seems to be a possibility for other gTLDs too, or domain names of litigation.
I wonder especially about this issue, that the private sector was absolutely horrified when someone proposed that this alternative supervision would have ‑‑ the accountability of ICANN would be done for an independent organization outside of the country. Even within the country, within the United States, but independent of ICANN, totally independent of ICANN.
So any of you, some comments about that. Thank you. And thank you for the applause. I have to say something. The prize was not for me. I'm a guardian of a collective prize. So many people's work went into it. I'm just holding it, but in the name of all of those people.
Thank you.
(Applause)
>> MODERATOR: Thank you, sir. Let's take two more questions. And then we will come back to the panelists. It looks like we have three questions. Name and affiliation.
>> AUDIENCE MEMBER: My name is Rob Plummer, I have worked for the Finnish Pirate Party for seven years. The US has been bragging about the Internet kill switch and my feeble understanding is that it has a lot to do with IANA and ICANN in the US. That hardly sounds like the type of internet government that we would like to see.
>> MODERATOR: Thank you. We have two more questions down in the back. So one down there. Go ahead.
>> AUDIENCE MEMBER: Thank you. My name is Otto Sukaman I'm in Delhi, India. I'm also a participant of the CCWG accountability. It's not a question but more of a comment. On the issue of jurisdiction, one of the questions of the CCWG has been dealing ‑‑ you know, in the initial stages is not the United States ‑‑ if not the United States, which legal jurisdiction would you locate it with? I'm not sure whether that's a helpful way to face the question, because the ‑‑ at least for me, the issue of jurisdiction is tied with the legal standards on things like taxation, intellectual property rights in the United States that I feel are percolating into the ICANN space.
Now, there is a discussion going on in the CCWG as to whether ‑‑ currently as to whether ICANN should ‑‑ you know, is ICANN performing a regulatory role on several of its functions? So if there is ‑‑ if ICANN is, indeed performing a regulatory role, then we should be concerned about what legal standards in the United States are influencing ICANN's regulatory role, with access and free speech and privacy, with respect to who is.
If those concerns can be addressed because the legal standards in the United States may not align with the legal standards in some developing economies, if those concerns can be addressed, I think personally for me the jurisdiction is resolved. It's not so much that ICANN needs to move into a different country so much as it is the concerns of economy in which it is located and the legal standards that apply there.
Thank you.
>> MODERATOR: Thank you. So we have one question here in the ‑‑ yeah.
>> AUDIENCE MEMBER: Is it working?
>> MODERATOR: Yes, it's working. Go ahead.
>> AUDIENCE MEMBER: So my name is George Schweiger, I'm the CCD operator for Germany.
My question would be that you have been talking about ICANN specifically, but there never has been any mentioning of the post ‑‑ post‑ transition IANA function operator. So would there be an option to distinguish between the two, and would that give us certain ‑‑ certainly more possibility of designing a jurisdiction that will work out to functions for everybody?
>> MODERATOR: Thanks for that.
And before bringing back to the comments of our panelists, we have one additional question down here on the left. So Jorge? Can we get a mic here? Sorry about that. And then ‑‑ and then we close and then we go back for a second round of questions. Okay.
So just to give you an opportunity to note, to avoid us getting lots of questions and get our panelists confused, what was the first question, the first place.
So please go ahead.
>> AUDIENCE MEMBER: Hello, thank you very much. I'm Jorge Cancio with the Swiss government. Just as a point of information, although I don't deal with host agreements with state host agreements, I have some information and ‑‑ on what is the status of the number of agreements with Switzerland and the host country for many IGOs. It's public information which that be consulted on the website of the relevant authority of the foreign affairs ministry in Switzerland. I can provide a link if this is useful for anyone interested. There are 39 agreements with host country status. Examples include private organizations, probably one of the most interesting examples is the Red Cross, which is a private based organization mainly, and agreements provide for rules of noninterference with the organization, which may be irrelevant, for instance, in the realm of the ccTLDs and also operations on good governance of those organizations in some cases.
And also other interesting agreements, which I don't know so much in the detail, I'm afraid. But organizations such as the International Aerospace Trade Organization it's called which is based on aerospace companies and the ISO, the international standards organization, which is also privately based. So that's the status of what is the regulation on host country agreements. If certain conditions are met, it may also be applicable to international NGOs, not only to international organizations with treaty basis, and, well, I think that's information I wanted to share with you.
Thank you.
>> MODERATOR: Okay, thank you for that, Jorge.
With that, I will bring back the discussions for our panelists so they can react to the comments, to the questions made. So also let's follow the same order of the presentations or Tobias do you want to go first since ‑‑ okay.
So let's follow this order. Let's start here on my right and we finish on my left. So Tobias, please, go ahead.
>> TOBIAS MAHLER: Can you hear me? Okay. Thank you. Maybe just to the last point, yes, exactly. So there is, I think, if we compare the Swiss legal framework with the US legal framework, then this host country agreement ‑‑ the possible under the host country agreement under Swiss law is, I guess, more favorable than US law formally. In the United States, you also have an international organization immunities but that only applied to international governmental organizations.
So there are more possibles in Swiss law, although there is this limitation that as a rule, NGOs cannot get immunities, but other international organs can, and then it's not really clear to me what other international organs would be, but there are, indeed, examples of organizations that could be considered similar. So I think there is a real possibility there to get something. The question is also if there is a need to do that. If there is really a need to move there, to move part of the operation there, to move maybe the post‑transition operator there. I don't know:
The issue of the kill switch that was mentioned is, of course, a more complex aspect because as long as you have Verisign as the registry for the route, it doesn't really matter who ‑‑ it's not really clear to me what exactly this kill switch is, but ‑‑ but the issues are more complex than just the location of ICANN or the location of the post‑transition operator.
And then to Carlos' question, to the international status, so under public international law, this is a bit limited. So we have this status of intergovernmental organization, which has ‑‑ which is based on a treaty. That's fine, but that doesn't really fit for ICANN.
And then we have other private organizations which are registered nationally, and then as a said, there are ‑‑ depending on the legal framework, there are different possibilities to get immunities and other countries do seem to give more immunities to NGOs than US law does. Thank you.
>> MODERATOR: Thanks, Tobias.
Pedro?
>> PEDRO: Well, I'm not a lawyer. And ‑‑ but I'm actually an engineer, which tried to follow a diplomatic path. So I probably won't have too much insight on some of the details that have been raised here. But I think one item that Arun back there has praised it.
It's raised how complex this issue is. When he says that it's not too much whether we should move out of the US or not, but rather it's more related to the legal standards that are applied to many of the issues that relates to ICANN's activity. So I think it ‑‑ at the end of the day, it all boils down to this contradiction that maybe ‑‑ maybe, let's say, we may conclude there's a contradiction between all this aspects of jurisdiction, and the mission of ICANN to serve the global public interest.
Normally people, when we consider that, people try to stress the public interest and forget the global adjective.
I think this is very important to consider and I think as food for thought, we always need to ‑‑ it's very important that we always refer back to some agreed language, and it's ‑‑ I would like ‑‑ I think it's appropriate that we refer to the multistakeholder statement. There was a specific paragraph there that called ‑‑ that ‑‑ well, it's already through to be clear. It says under the roadmap section of this statement, paragraph 6, it reads, it's expected that the process of globalization of ICANN speeds up, leading to truly international and global organization serving public interest with clearly implementability and accountability transparency mechanisms that satisfy requirements from both internal stakeholders and the global community.
Of course this paragraph can be interpreted in many ways because I have already heard some people say that I can be coming international means that I can open offices all around the world. This is certainly one interpretation that we do not share.
I think it shows, at least how complex this issue is, and many facets that it involves, but, again, I want to stress this important aspect that we should always look for ‑‑ to avoid a contradiction of ICANN's activities and the mission to serve the global public interest.
Thank you.
>> MODERATOR: Thank you, Pedro, Jan?
>> JAN SCHOLTE: Yes thank you for the questions. Carlos in the audience as opposed to on the stage. Nice to see you again. We have met many years ago.
Having an autonomous organization elsewhere, which supervises ICANN, we did also supervise the RTF and the IRRs and the IANA functions as a hold. I think the multistakeholder would be the autonomous voice and the so‑called empowerment mechanism and the ‑‑ and enhanced independent review mechanism and so on, that those would be at ton muss forces and that one doesn't need to then create some institute elsewhere to function in that way.
George, on the post‑transition IANA functions operator, the jurisdiction debate is not really about who executes the IANA functions. The jurisdiction debate has been an occasioned and the accountability issues about ICANN that arise at the moment of the IANA transition has been an occasion to raise the issues about jurisdiction. So it's ‑‑ you know, in the other parts of the IANA transition, the IANA plan which has been the engineering task force's proposal, they didn't talk about jurisdiction at all. And the crisp proposal coming from the regional Internet registries, I think there were a few voices from Arab countries within the RIP, the Europe Middle East region that mentioned jurisdiction but otherwise did not and the CCWG, which is the domain name proposal for the IANA transition, as I said, there were one or two attempts to raise the jurisdiction issue, but it didn't happen. It's been the accountability, it's the CCWG about IANA. It's been the occasion for jurisdiction debates to come up.
Arun, you seem to take a fairly pragmatic line, if it works legally, et cetera, then I'm fine with that, and that's the way I hear a lot of the talk around jurisdiction issues in the ‑‑ around ICANN. If it works technically, if it works legally, it works then we are fine with that. I think there are those ‑‑ there are those other people, maybe not coming from as technical positions, who still see this issue as a ‑‑ as something of principle and are uncomfortable with the idea that a global public good is managed under legal system of one country or one unit within that country and the notion that that unit within that country with securely address the interests and conform to all the context of all other parts of the world.
Again, I think the prevailing discussion in the IANA transition has been a legal and technical one and most people have been comfortable with that, but then I think there are some other voices, especially coming from more diplomatic and geopolitical circles that have still had some questions.
>> MODERATOR: Thanks for that, Jan. Finn?
>> FINN PETERSEN: Thank you. I will start with repeating a little bit myself that is we do have a problem and what is the problem. I think it's also been put in Tobias' presentation. So if we don't have problem, it's always difficult to find solutions because what are you trying to fix?
This concerning an autonomous bought outside in other jurisdictions, I cannot see that that will be helpful. On the contrary, what we have been working towards is to empower the community and see that there's the necessary checks and balances between the board and the community and those powers that we would like to see that the community have more powers is going to be implemented.
I will also just underline, of course, ICANN and the communities is part of the global Internet society and it is important that we get more participation. And I will see that the solutions for much of this is also the participation in ‑‑ in the ICANN communities and so that's the way we can feed in the public global interests and not to create something outside ICANN in another country who might only give further problems.
So that's ‑‑ that's ‑‑ this Internet kill switch, I have never heard about. So to my knowledge, it has not been a part of the discussions. So I ‑‑ I know nothing about it. The IANA operator and operated and put it to another jurisdiction, once again, I don't think that's the problem there. The problem would be that the IANA function delivered the service that is needed. And have the security of the network. That is the issue and not jurisdiction. While people have said that there's a competition between jurisdictions and the public interests that is in the US, well, I ‑‑ I have more difficult to see that this is a contradiction.
If we will ever look into ‑‑ if there will be a problem, we will attack it. It is difficult to see the contradiction beforehand.
>> MODERATOR: I would like to bring the comments back to Tobias and Pedro. Go ahead.
>> TOBIAS MAHLER: What does it mean to be truly global in the NetMundial. I think one crucial aspect that has been overlooked is that ICANN should hire more lawyers from other jurisdictions what is really important in the ICANN context are really the contracts, and when you draft contracts, what will ‑‑ what will be the applicable law you put into the contract? Of course, the law of the ‑‑ of where you have studied because you don't really know what is in other laws.
So if we want a more global ICANN, then having more lawyers from other jurisdictions both external advisors and internally would be a key aspect.
You see that in all business relations too.
Whoever is the stronger part has his or her lawyers from that region and obviously puts in the home jurisdiction in the contracts. And I don't really see why we have to do it this way in ICANN, and this can be easily changed without moving any organizations. It's ‑‑ it's more a cultural aspect, really.
>> MODERATOR: Thanks Tobias. Pedro.
>> PEDRO: I just want to briefly comment that maybe I haven't expressed myself 100% clearly, but I didn't want to imply that there is necessarily a contradiction, but I think we need to look for those. We need to make ‑‑ we need to make an effort to, you know ‑‑ when identifying those contradictions, trying to make a ‑‑ let's say, an effort to address those. So ‑‑ and this is actually fully in line with the ‑‑ with the process that the CCWG accountability has decided to follow. It decided to follow a requirements‑based approach on the issue of jurisdiction in which we list all the different aspects of jurisdiction and come up with requirements for all of those aspects.
You have already ‑‑ as Finn said, a stable regime and other transparency and other aspects and based on this list of requirements, see, compare, what do we have now? Is it enough to satisfy these requirements? If not, where could we probably look for better conditions to satisfy those requirements? So I think there is ‑‑ I just wanted to make clear that I didn't say we are already concluding. There are contradictions. Thank you.
>> MODERATOR: With that, we will go back to our audience to get additional questions, but before I go to your question, let me just ask, do we have any questions from our remote participation? No? No questions so far. So we have one question here in the front, we just need a mic here on my right. So we have just one question.
>> AUDIENCE MEMBER: Patrick Curry I'm here on behalf of EU, project mapping which is on Internet Governance, freedom of human rights, fundamental human rights and protection of intellectual property.
And we have a situation unfolding where digital economies are really increasingly relying on the Internet. As part of that, we have strategic global requirements for greater interoperability on trust. Those trust mechanisms require registers to exist which have actually independent assurable and in realtime can be confirmed to be correct and up to date. And this is to do with things like beneficiary, traceable and companies and so on. We have new changes coming in. There's changes in SmartPhone and trusted execution environment this year, which will alter the privacy or the privacy paradigm and put much greater power in the hands of users and how we don't abuse that, is another question.
So driving through this, oh, and I mentioned one other thing, which is the advent of block chains. So the use of block chains and also PTI federation at scale, which many people don't know about. You wouldn't have gotten here on a plane without PKI Federation, I would energy. What we are coming to is a situation, for example, where every entity in cyberspace binds to an organization. The organizational registers we have today are utterly unfit, for the internet age.
So there's a draft ISO standard, 29003, within which there is specification for registers of legal organizations or ROLO for short. Some have taken this and are working on it. My question is. This is a need to include, I suggest, more coordination with these organizations which are developing information centric registries which support economies and the wider functioning of the Internet in many different levels. But I'm not sure where these dialogues are taking place. And I was very encouraged there by Professor Scholte and his comments about having to link with IETF and IRR, I think there are a half dozen or agencies that we could be linking to. Where does that discussion take place? Please could the panel advise?
>> MODERATOR: Thank you for that. We have another ‑‑ do you want to make quick comments? Do we have any other questions?
Okay.
Oh, a question from yourself. Sorry about that! You see, I'm totally failing being a moderate. Be quick, Carlos.
>> AUDIENCE MEMBER: I agree with that if ‑‑ if I remember ‑‑ I have to remember, Vint Cerf telling us in the first IGF that you don't fix what was not broke than was a strong line and the Internet Society and several or organizations joined him in saying that to justify that this should not be discussed at the IGF, the governance of the larger infrastructure, no? Meaning names numbers, and protocols. In the process between 2006, and 2007, obviously Vint came to conclude that this was not right and he changed the line to the following one, we are doing it right, solid, consistent, transparently, and we should not be afraid to discuss it in any form. So let's go ahead with it.
And then Internet Society shared that line also and there came the talk between critical Internet resources, as an umbrella to discuss all of the Internet logic infrastructure and other issues similar to this, no?
So, of course ‑‑ of course, it seems everything is running okay, but there are so many issues, so many issues that this is why the discussion of the transition process is so complex. Otherwise, NTIA would just discuss with ICANN, and, look, this is your baby. Go ahead now. You have a thin majority, you don't need us anymore to be overseeing you. And go ahead. That's not the case, given the number of infrastructure, that's not the case. So this is, why I think, we need to discuss it further and carefully.
And finally, I do hope that IETF is not ‑‑ never supervised. IETF is an autonomous forum and should remain an autonomous forum. It doesn't need any big overseer on top of it. Thank you.
>> MODERATOR: Thanks for that. Go ahead.
>> AUDIENCE MEMBER: Sorry, I'm wearing five hats. I'm speaking here as an individual. I'm James cannon with Cyber invasion. I'm involved in the CCWG, and the CCWG process. I wanted to go back to Jan's comments about how we assessed the jurisdiction issue in the CGWB, so in Istanbul this was a discussion whether the IANA stewardship was an appropriate place to assess the jurisdiction of ICANN. And a number of us, particularly I suppose from the more technical side of the community didn't view it in some ways as other members of the community.
The jurisdiction issue in my opinion, at the moment is primarily a political issue. That's just the reality of it. When we sit down and we look at the empirical data on the last 18 years of ICANN, it's worked. The US has provided a safe, legal jurisdiction for ICANN. So the approach that we took within the CCWG and I suppose it's possibly this is where I differ from Jan, I don't believe there was a silencing of the jurisdictional issue. We put it out very clearly, if people wanted us to look at jurisdiction, it was important that it had to be for a reason. People needed to bring us, as the community, something that we can't do in the US that we need to do in ICANN after the transition. And that was put out for anybody to come to the table with, you know, be it a governmental organization, tobacco a private stakeholder. Give us a reason to look at this, at this time in the process. And it didn't happen. Nobody was able to bring us a solid issue that we couldn't solve within the jurisdiction of the United States.
So that's not to say that that's not an important issue for ICANN and for, I suppose, more bigger picture, the Internet globally, you know. I finally found something that I agree with Pedro on, on jurisdiction. I don't think ICANN opening more offices around the world is globalizing ICANN. That's ‑‑ it's a good effort. It's possibly the start of a process to globalize ICANN, but that's no globalization of what should be a very international organization. ICANN is still a very US centric and US feeling organization to work with and to work around, and that's something that is definitely something that should be worked ‑‑ looked at and I think it's perfectly appropriate for CCWG, because it's more looking at ICANN internally, to look at the issue of jurisdiction in that manner.
At the basic ‑‑ you know, the first discussion that we had in the CWG, we were very clear that we didn't want the IANA transition to become a catch‑all for everybody's wants for ICANN, because otherwise, we would be here for five years. You know, everybody has something that they want to change in ICANN. We are here within the transition work to do one job which is to replace the quite small clerical role that the US government plays, not to entirely reform every single person's problem with ICANN. That was the important part of that initial discussion when we came up with the start of this process, probably two years ago almost, that people needed to find a reason to move ICANN out of the US and nobody came to the floor with a reason. And that's why it didn't go any further than that.
So I just think it's important that the impression isn't that. The discussion was silenced. It was that the discussion never really started because we couldn't find a reason to start it.
>> MODERATOR: Thanks for that, James.
We have one final question down here, Daniel.
>> AUDIENCE MEMBER: Yes, Daniel Argnato from the University of Washington. The Brazilian steering commission, and, you know, what you see is an appropriate role in that, you know, there's this proposal to form kind of a panel of organizations along with the world economic forum, and it's another kind of way of constructing a new governance mechanism in a way, but more of an advisory role and I'm ‑‑ I'm curious what you think of that initiative, in particular, but in general, what role that kind of international organization ‑‑ really domestic organization should take in the international stage when it has a lot to offer.
But it should remain cognizant, but it's also playing an international role that is not necessarily the same as its local role. Thank you.
>> MODERATOR: Thanks for that. With that, we have only, like, five minutes left.
Oh, please, Larry if you want to are.
>> AUDIENCE MEMBER: Larry Strickland, ITA. I'm sorry I didn't hear the whole panel. I would have love to hear everything that came before. I would like to make two comments. One was, I hope when people think about the legal location of ICANN, they understand that for purposes of the community, what's critical in this accountability work is having a place to go to ensure that the board carries out the will of the community. In other words, whether or not ICANN is located in Los Angeles, Virginia or San Palo, the policy making should be coming from the community. And the board should be following the consensus views of the community. So what you are really looking for is where do you have the opportunity for recourse when the board doesn't do what the community wants?
And in that regard, I ‑‑ I have never heard any suggestion that there is any jurisdiction outside the United States that has a stronger tradition of protecting in effect member or shareholder rights than the courts in the United States, and at the end of the day, that's what you are really looking for, is where do you have the assurance that when the board does not follow what the community wants, that you can have resource to change that outcome.
And, again, I think if someone has a better jurisdiction to propose, I would be interested in hearing it, but I have not heard one and I think the facts are that the US courts, in fact, have spent much more time protecting the rights of members and shareholders than perhaps other countries. Certainly the idea that Switzerland might provide a better opportunity and with all due respect, to Jorge, you know, Switzerland allows operations like FIFA to exist. I'm not sure it provides us the best model for this.
The second thing I wanted to say is that ‑‑ I'm sorry, I have insulted Jorge and apologize.
There's nothing about the legal location of this organization that in any way impinges on things like what law should govern a contract, what court do you go into, to enforce a contract? Those are separate issues and, indeed, ICANN, as I understand it has made progress in that area over the last few years and it's an area in which I think it's worthy of continued exploration, this whole idea of where do you take disputes when they are contractual in nature between parties with contracts with ICANN.
But, there, again, just the fact that ICANN is located in California does not in any way prevent a Brazilian company negotiating a contract with ICANN from establishing in that contract that it will be governed by Brazilian law and that to enforce the rights of the contract, you go into a Brazilian court. That's a separate question that ought to be respected too as part of this discussion.
Thank you. And apologize, Jorge. Do you want a rebuttal?
>> MODERATOR: Thanks, Larry. It's great to have you in the audience. Jorge, do you want to comment?
>>> JORGE: Thank you. I was just writing down that we ‑‑ we were having a rational debate, and ‑‑ and are because ‑‑ because I was prepared to listen to something like this, but I wouldn't have expected that from you, Larry.
So it's really something sad to ‑‑ to receive something like that. And I'm not an English native speaker, but this could bring us to ‑‑ to see on other kinds of considerations US corporate law hasn't been always very effective and other crises. So I would be careful what accession I make on other countries if one problem has been ‑‑ has come on to the table, where by the way, our ‑‑ our authorities are cooperating. So I would make that ‑‑ that point very clear.
And by the way, it's ‑‑ it's also a country which hosts more than 400 ‑‑ 400 international INGOs, which most of them, the vast majority of them work perfectly and in the case of FIFA there's no kind or shape of agreement or special treatment between the Swiss government and that organization. It's just a private organization. And what has happened there could have happened perfectly under Delaware law, under Californian law because it has happened before. Perhaps not with FIFA itself, because it happened to be established in Switzerland. But it has happened with many, many companies and we all know many names of companies which are a huge impact on the world economy. So let ‑‑ let's have that point clear.
Thank you.
>> MODERATOR: Thanks for your comments Jorge. We are definitely over our time right now, and it's really a pity, because it's clear that that's a very important and complex discussion for us to have.
But with that, I will only bring back for our panelist for very, very short final comments. Emphasis on short. Tobias?
>> TOBIAS MAHLER: I will just say thank you.
>> MODERATOR: Pedro?
>> PEDRO: I will say a bit more. I think it's ‑‑ from what we have discussed here, I mean, the main takeaway is that we shouldn't, at this moment, jump into conclusions. The debate over jurisdiction is specifically about ICANN's jurisdiction. It's not new. There has been some reports already reports being produced, I think ten years ago, and there is already some, let's say studies about it. But still I ‑‑ I think the debate is not mature enough.
So I invite everybody to follow discussions that will take place within the CCWG, within the work stream two and there we will really try to ‑‑ to go more in‑depth, into this subject and, well, possibly come out with interesting recommendations about that topic.
Thank you.
>> MODERATOR: Jan?
>> JAN SCHOLTE: Yes, Patrick, yes, problems. I call it polycentric governance, it means it's diffuse, and constantly changing and has ambiguous hierarchy and it's very hard to navigate.
Carlos, I think ‑‑ not ‑‑ maybe just ask the question, when things are not broken, I have think you want to ask, not broken in the eyes of whom? Sometimes things are broken for some people that are not broken for others. When the Internet is focused on the ASCII it's not a problem for those who are based in that keyboard, but it is a problem for those who are not.
James, maybe silencing was the wrong word to use, but when I observed the discussion in Istanbul, I observed some people trying to raise jurisdiction as a political question, and then the response from the rest, from the chair and from the rest of the committee was there's no technical problem.
But the problem was the person was not raising a technical problem. The person was raising a political problem, and the political discourse was disallowed by the technical discourse. I'm just making an observation. I'm not saying it's necessarily right or wrong.
And then I think in terms of finally, the ‑‑ Larry, on the ‑‑ I think the big issue may be as Finn has said, it's not so much the jurisdiction per se, but it's the diversity in ICANN, and if greater diversity can be brought in ICANN, in the US jurisdiction with US staff dominance and US court dominance and it blocks diversity, I think that's challenge for ICANN going forward that shows based within the US, that's the main challenge ahead.
>> MODERATOR: Thank you, Jan. Finn?
>> FINN PETERSEN: I think I will thank the panelists for a good discussion for me and at least in my eye on the issue and thank you for the good questions. It's good to see a debate in the room between different people. Very interesting discussion, I think.
So thank you all, and thank you for listening to us.
>> MODERATOR: Thank you, Finn.
(Applause)
I have to leave with that. We conclude. Since we have yesterday a lively discussion about deaf and the Internet. Why not have a complex discussion about what is not an issue. So thank you very much for the interaction and we'll see you next time.