Plenary Discussion #4 Report back from the legal session

Moderator: Patrick Fair

The results of the Legal Session the night before were presented to the plenary.

a) membership

c) arbitration clause (binding?) for international disputes

d) jurisdiction and choice of law in relation to nIANA’s objectives

e) limitation of the interim Board’s functions

f) election/impeachment process for Board members

g) Time for establishment of the Names Council, its relationship to the Board

h) selection and nomination of the Board

i) mechanism to ensure the Board is representative

The timetable drafted was the following:

1) definition of the framework:

Timeframe:

issues to be resolved

by September 1st

functions and limitation of powers of the Board, funding, staff, representative balance

on September 1st

appointment of an interim Board

by/ as of mid-September

iBoard to further amend the bylaws, define the voting mechanism for the Board, the membership, the appeals process and the requirements to further develop the entity

first AGM, election of the Board

creation of new TLDs, fully develop the membership structure, definition of role of councils and other issues

Thursday, August 13^th, 10:00 – 12:30

Working Group Discussion (1) "Address and Protocol Councils"

Moderator Ole Jacobson opened the session

Patrick Greenwell gave an introduction to the issues, reporting observations from Reston and Geneva and the consensus points reached there.

Reston had no address and protocol council. There was a vet concept of the councils, the address and protocol council agreed upon by the working groups as wished to exist and needing to be defined.

The Workshop D report of Geneva was read out: the council should be open to the whole community, should be seen on a regional level. There had been consensus that regional registries should be on the council .

(see report or http://cyber.harvard.edu/ifwp/consensuslist.asp for more information about the consensus of previous conferences.)

He then gave his personal view on general issues the IP council would deal with such as allocation policies, when a new regional registries should represent an unrepresented region etc.

Comments from the floor:

The point of user representation was raised. What was discussed is the identification of those interested in regional representation. Should user representation be at all levels, or just at the top level? It is yet to be decided who is a user, how these groups are defined.

Current registry issues: APNIC is in a transition of location, moving the office work and getting up to speed. Conflicting priorities now arise in running the registry versus participation in groups like this. Some core priorities were currently in registry issues. Fairness must be ensured in dealing with the whole diversity of members, which is a huge challenge, as priority is training newer members in dealing with APNIC. APNIC 's position towards the address council is that the regional registries have a history and expertise in the management of the Internet, and they can be representative of open consensus is reached among them. Consensus must be reached on how to work together in the crucial task of administration and the technical tasks of allocating addresses.

We’re here today to work on a fair and open process. The board needs to be made accountable. The IP registries work today, but some changes must be made to make the process more transparent and accountable. Smaller registries are at a disadvantage today, they have no say in how the board operates. How can one take the framework and correct some of the problems that exist?

The suggestion was made that there should be other organization s in the IP address council to make it more accountable. This relates to the question of whether the council will be bottom-up or top down.

One important thing to work on is a dispute resolution for address allocations, which is needed for boosting confidence in the regions.

If the councils are technical administrative bodies, then there is no need for representation, as pressure can go through the board to the councils.

Final policy decisions should be reset with the board (as said during one of the lunch discussions on Wednesday). Representation was discussed at Geneva, the remaining question is of who?

Should it be opened up, how, with whom? There is a need for a truly representative body. The difference between public trust and closed elements of the entity must also be recognised.

ARIN is technical in nature, but people need to have a voice.

Specific problem with ARIN is the need of an ombudsman system for disputes.

We should remember that there are issues of openness and accountability in certain registries - issues that are not for discussion here.

There are analogies between IP addresses and telephone numbering; if the names council gets involved with micro management of registries, then huge problems will arise. People should be encouraged to stay away from these issues in ARIN.

There are issues that need to be worked on, the registries do need to look at this process.

Everyone agreed with openness and transparent issues, but the dispute resolution issue is more of a policy issue.

Need for distinction between names space and numbers space; the boards of regional registries are accountable, they are elected from the membership

Regional comments:

Ghana: Working on getting support for a representative structure. The regional registries represent interests, the question of users is not straightforward.

Protocols issue: there was very little issue with the Protocol council at Reston, some consensus points on this in Geneva. (see report from Geneva at http://www.geneva.ifwp.org/rptworkshopd.html)

Summary:

Address Council

* No Consensus on whether users should be represented directly in the councils

* If yes, by what mechanism ?

* IP number space is different from name space: a finite resource with technical constraints

* Need appeals/dispute resolution process for address council/RIR decisions

* Need to distinguish between cases specific to particular regions from general issues

* Don't forget routing identifiers (AS#s) and in-addr.arpa domain

Protocol Council

* IETF/IAB as supporting organization s

* RFC 2026, 2027 describes IETF/IAB structure and democratic processes

* Opportunity for input into this process via Chicago IETF meeting 24-28th

* Should other Internet-relevant standards bodies e.g. W3C, ISO, ITU be represented ?

Summaries : 3 issues, to be used as

Working lunch table topics:

Working Group Discussion (2) "The Names Council"

Moderator Harrish Pillay opened the session.

Then a short summary of the consensus achieved on this topic in Reston and Geneva was given.

First Consensus Point:

Some form of Names Council is required.

The meeting proposed to focus on structural issues, only addressing functions as they became relevant.

Two model organization al structures were put up.

1. The first model followed the IANA structure for the formation of different councils (addressing, naming, etc.), each with a supporting organization .

The Names Council would operate with the equivalent of working groups (WGs), following an open IETF model with no limited membership. Each WG would have one or more special interests that they would cover. WGs would come into being as and when required. WGs might form to address issues such as creation/addition/ of new domains, trademark issues, dispute resolution, operations, etc.

2. The second model describes a collection of interest groups, operating like working groups, to support a Names Council. These interests groups were identified as: root service providers, TLD registry service providers, registrar service providers, DNS zone administrators, organised industry groups, and perhaps trademark interests. These groups work coherently on those aspects that they are interested in. They place someone on the board of directors of the Names Council. A "fair hearings" council would be created to give a voice to those who are impacted by the activities of the Names Council but do not have a vote.

Whether working groups or interest groups, a stakeholder could only be in one group to avoid doubling or any accumulation of influence. Nevertheless, the problem of weighing the influence of the different groups by their relevance for the system stays the most difficult and controversial topic.

The two charts were said to basically represent the two extremes of an entity with a political emphasis or one which is rather administrative, top-down or with a diffusion of power. Generally, all agreed that a combination of both - the compromise - would probably best suit the entity’s future role.

It was pointed out that root servers should have to have a say in whether they are able to carry a name at all. Others opposed that they could only choose to serve or not, signing a contract, but could not choose which service to provide.

Suggestion to try and identify key functions. The meeting proposed that the Names Council:

1. Develop policy framework for:

- the addition of TLDs;

- provisioning of root servers;

- creating a regularised feedback channel as a means to ensure that those who may not have a voice can be heard.

The Names Council should act in a predictable, open and transparent manner.

Work to be done:

- Adding/removing TLDs.

- Adding removing registries for TLDs.

- Co-ordinating operation of the root service, including addition/deletion of root servers.

Framework for assisting new ccTLDs.

The above items ("work to be done") were proposed from the floor and not discussed in any detail. The Functions received minimal discussion.

Thursday, August 13^th, 15:00-1600

Plenary Discussion # 5 "The Councils"

Reports from the working groups and the lunch tables

Moderator Patrick Fair opened the session.

Session 1 overview - IP addresses and protocol councils session

- not too much controversy: but questions left for discussion:

*where does the user interest get represented � on councils or on the board?

*broader issue across whole structure: if there were representation, by what mechanism is it ensured?

*numbers and names space are separate issues, with own technical structure.

*Lack of confidence with what is received from and what is needed by the users � need to set up disputes and appeals process

- the issue is specific to a regional registry, not to the entity as whole

What is the structure of the organization ?

Q. Are there at least two registries running parallel registries, or not?

A. For later discussion

No calls for consensus in the meeting - nothing "agreed upon" in this session

Session 2 overview - Names council session

Two possible models were discussed: the IANA structure and a proposal including interest groups to support the names council like working groups. Several functions of the Names Council had been discussed, namely:

*developing policy framework for

Breakaway group 1 - agreement on what names council should do and who is to do it

General understanding of

Work on names council

Who elects the name councils

What there are groups with legitimate reason to be on the council: TLDs, registers, trademarks, root-servers

Formal representation of a group of people, need to form legitimate group.

Getting people on the names council.

Functional aspect

What does a council need to do? Make policy, how and in what way is it responsible for these policies?

On the board - create working groups to get the work done.

Result of work is the operational side - translate policy into paper - should a contract exist? The staff is responsible for dealing with the end user (of the constituencies). Formalising the process.

Breakaway group 2 - names council debate

Breakaway group 3 - (regular rising feedback process) - changed to direct member input.

Petition rights should be included and applied to other councils as well

Open process, publication of decisions

Important policy decisions should only be taken off debate

Breakaway group 4 - Dispute resolution

New calls from name council will not participate in resolution in order to protect it � the names council will try to hold an informational library of claimant and cases, this library being made publicly available.

Breakaway group 5 - Framework for assisting new ccTLDs

Thursday, August 13th, 16:00- 17:30

Plenary Discussion # 6 "Two Hypothetical Debates in Oxford style"

Moderator: Patrick Fair

Format: Each side will present their arguments, which will be followed by delegates from the floor who will take a side. The teams will then wrap-up. Nobody can speak more than once during the debate. Participants were asked to keep in mind that the arguments brought forward did not necessarily reflect the opinions of the speakers.

Subject of Debate 1: The board shall have absolute control over the ccTLDs

Affirmative: Dr Donald N. Telage, Patrick O'Brien

Negative: Stafford Guest and Kilnam Chon

Affirmative: There are two governmental regimes, one working globally, the other for its citizens. How does the system now work? The IANA does not do things for the sovereign rights of Government, it only works for the root system. It doesn't get into issues, either you have a country TLD or you don't. However, should this change? It's a natural thing to say that countries that want to connect to this system (Net) have to participate in this system and its standards as they are.

Negative: Can't talk about controlling sovereign objects when the government is an NGO. It's obvious that they shouldn't be controlled. Second question is should they be handled in the same way as generic TLDs.

It is not clear to me that they should. If they are handled differently it creates interesting problems and issues. I think the gTLDs should also be free if the ccTLDs are free.

Affirmative: What we are talking about when we say that the names council has absolute control is that no-one else has absolute control. New Zealand was one of the first countries to abolish regulations and the results have been good and bad. If the names council doesn't have control over who gets the names, then country governments have control over these issues. Governments however are not the best ones and we are going to get differing styles of doing it from governments, some of them not good. The only way that some of the serious issues can get resolved is for the names council to take control.

Negative: What does absolute control mean? It means the same control over ccTLDs as the generic TLDs. We have seen in the Dominic Republic and in Germany what happens when control changes. We have to be careful because the sovereignty of a country is at stake and it is not wise to have conflicts with any country. ITU has minimum of control because the telephone has to work, so in that sense we have to have a minimum of control. But do we want to have control of these second and third level domains? For the ccTLD we have to rely on autonomy, so the conclusion is yes control but at a minimum like the telephone system.

Speakers from the floor:

Affirmative: We are here to set up a purist organization . With country registries what have we got? A bunch of fashion boutiques. It's got to be pure. Who needs fashion. Aren't we here to get governments out of the system? Get rid of the geeks (technical experts) and academics as well. We need to assert strong control. [all done tongue in cheek]

Negative: We are forming an administration not a country, lets keep away from assuming control as if we were. The DNS has unique features in that it can take multiple approaches to doing things. So let the ccTLDs be run differently. We have enough problems on our hands and we don't need to take over the problems from the countries.

Affirmative: The topic is controversial, but I don't know the answer. However, the names council should have paths for all ccTLDs. The names council is representative, therefore it should be able to take control. If it can't, then countries can't get involved at a generic level.

Negative: In the future we want to run the Internet in a dignified manner. In the name of grammar and language, it shouldn't be left to the Americans.

Negative: In Asia, where there is a culture of strong control by governments, the names council shouldn't be given control. gTLDs are for corporations, whereas ccTLDs are sometimes given away. The names council should have a generic policy that allows the sovereign to have most of the control. If you want to control the first level, what about the second and third levels.

Negative: I'm from India, and as you know there is a dispute in Kashmir. Would IANA like to take this dispute on board by deciding where Kashmir is to be located, India or Pakistan.

Conclusion by debating parties.

Negative: What about if a country sells its ccTLD. If it does this it acts as a gTLD. If they sell it then the rules should change, and they have no right to say that it should be considered sovereign. We can't have things both ways, a country that’s sold ist ccTLD is not assigned another one and the former ccTLD is now run by the rules of gTLDs. However, one way to solve the problem is to not have any rules for any of them.

Affirmative: There is no tremendous distinction between the two categories. The line is blurry. In the last two years, ccTLDs have become marketing operations so to make a distinction is a slippery thing and hard to do. The names council should look at both equally as a result.

Result of debate as judged by audience:

The opposing side wins, in other words the board should not have control over ccTLDs.

Debate 2 - The most important question in determining the board is regional representation.

Affirmative: Dave Crocker and John Wood

Negative: John Wood and Pindar Wong

(swapping their positions)

Affirmative: In terms of history: there should be regional representation because the different regions of the world are in different stages of development and varying degrees of representation is required in order to ensure fairness. In other areas than the US, explosive growth in the Internet is occurring. The nature of the legal systems in each countries differ, one of the worst choices however is the US because of the high number of courts, therefore we need regional representation on the board.

Negative: One can't hand out the control to regional representation as the Internet growth is in age of adolescence, the institutions are not old enough. Regional representation is a mistake because of the usage of the Internet for content, people, e-commerce. It is clear that the US and Europe are the historically and economically best place for the new corporation, there, people understand the uses and importance of Internet. Most of the technical expertise and infrastructure lies in the US and Europe. These continents are investing taxes dollars into the building of the Internet, so they should have more of a say in what is decided. One needs to return their investment, shouldn’t jeopardise this by putting it in unqualified hands. It needs a mature legal process, and the US has the most advanced jurisprudence system in the world, the legal process itself proves that the US is competent and capable of handling the new system.

Affirmative: Inclusiveness in the Internet as a global community is the key word. How could one choose or not choose to not include everybody? No one has the right to disenfranchise any people or regions, destine them to the 4th or 5th world depending on the extent of the paradigm shift. What gives someone the right to speak for

others? How do we develop software in Urdu or Sanskrit, what about cultural issues? Sensitivity is needed to build this.

Negative: It is not the most important factor to have regional representation; I was born in Hong Kong, I didn’t chose to be. If one looks at the functions of the board, all members will come from some region or another. One of the most important functions of the Internet is that it is a global network; this automatically involves all regions. If we define a region, where is the border line drawn? If the main benefit of the network is to be global, then regional representation is a non-issue because the Internet needs to keep functioning. If a region is more concerned about regional issue than the overall functioning of the Internet and does not like how it is being represented , then it does not need to be connected to the Internet.

Speakers from the floor:

Affirmative: As the Internet grows, this region of the world will have many more stakeholders than North America, but will growing influence of North America preclude representation by Asia Pacific? As the Internet grows, this should not even be an issue.

Affirmative: I believe there should be regional representation because I would like to have a voice. The alternative is "if you don't like it, you can leave", but there may come a time when those who decide issues that affect me will have worked with me for so long that they know what I need.

The only thing lasting in this world is the UN, and the Internet?

If we have representatives from regions, it could depend on the issues that are being voted upon, like issues of representation, if people/regions are really interested in the issues.

Affirmative: As far as I get this debate, those who have will get more, and those who have less will get less. The Internet is more business oriented, the whole world is controlled by business; we need regional representation, otherwise the Internet will be controlled by regional business interests.

Negative: The Internet erases space boundaries; if it is a technical issue, then you need people who can handle these issues, not regional representation; if it is a language issue, then regional representation is needed � all depending on the issue.

Negative: People aren’t chosen because of where they are from, but because they are good at what they do. If the place of control is from the middle, then you’d need regional representation. But we’re moving away from this, control is coming in from the edges.

Negative: Nationality is not a qualification for being on a board. Additionally, problems would arise trying to determine who represents a certain region.

Conclusion from the debating parties:

Negative: There is legitimacy both for and against the issue, it all depends on the emphasis. We need to focus on the functioning of the net, rather than on politics. There are relevant interests for relevant topics, we do need to keep this in mind. However, the board needs to be able to function effectively. How would this be ensured with one representative from each region? How much work will get done? The other issue is that of what is a region? Boundaries are not very useful - it is essential that many different factors feed into the decision-making. In choosing who shall provide an operations basis for IANA, one needs to focus on primary issues of the functioning of the entity.

Affirmative: There are not just technical or economic regions, but also social and political ones. It is economic and essential to recognise importance of equality of e-commerce, of equal competition. It is more than just an economic issue, the www is not just a technical matter but a social and a political one, giving access to information. It is a cultural issue as well, as wel`e living in a global society, not an American society.

2nd Summary affirmative: We need regional representation because of people who have the opinion that "if you don't like it, you can leave it"; the Internet needs to protect users from this type of view, needs to avoid splinter groups forming. The Internet would otherwise cease to be a global network, its main value would disappear as regions would disconnect from the Internet.

The vote went in favour of the proposition:

The most important question in determining the board is regional representation.

Thursday, August 13th, 17:30 - 18:30

Plenary Discussion # 7 Final wrap-up session

Moderators: Izumi Aizu and Erica Roberts

Three questions:

1) What have you learned?

2) What are you going to do?

3) What do you expect IFWP and others to do?

Comments from the participants:

Cambodia: I have learned things but there are limits to what we can do in Cambodia.

Ghana: I learned that my country needs more representation.

I would like to hear how the meeting fits into the whole process and how it will be used.

Reply: We can't tell you because we don't know what will come, who will be there and where. It would be premature to give that type of information. I can give you speculations but don't rely on them. At the moment there are plans they will be posted on the net. The hope is that a group of people will meet because we need to come to some sort of closure. The group will hopefully be representative, but the process is likely to be closed. However, I hope information will be posted from any such meeting regularly on the net. But these are just my views. You can't negotiate in a glass bowl.

Steering committee member: I would second this and hope that it happens as such. Here, we are just providing a place for people to express their opinion, however we can’t do anything productive with just a bunch of opinions.

Question: When is this likely to happen, because people have to make plans?

No answer.

Any person from AP region should join the steering committee, as this is a way to get an information window into what's happening. IFWP is just one way of influencing this process and there are others.

The idea of the IFWP is that it's a facilitator for the private sector to get its act together. We don't think we are the only game in town, as others have legitimate views. The idea was to have a neutral forum for the expression of views. At no time was the IFWP formed as a body to create policy. It is a procedural process body. Yes, there needs to be a closure, but all that the IFWP will do is try to control that. We are just having a neutral facility role.

I am happy that there was a call for AP participation in the steering committee.

There is a group of people on the steering committee who do not want a wrap up closure meeting. This same group wants to have a meeting behind closed doors.

I would like to argue for a different format for the wrap-up meeting. The number of people who can participate in a number of meetings around the world is very restricted. These people then have an enormous responsibility. Maybe people from AP are more comfortable with written discussions. I would like to argue for a place where you can post things like this for discussion. Whenever someone refers to an email list, it's the list you are never on. A central posting place would be good for people who cannot make the meetings.

I speak for the silent majority of potential users. What I will do when I come home is present the White Paper. We will promote the AP conference. When the next meeting comes, however, please bring a list of what was already discussed here so that no time is wasted on diversions.

Compared to Geneva, people are now talking about the responsibility of ownership. People are talking about the split between policy and the actual running of the body. I expect the meeting to draw quickly to some closure. We don't want the thing to fall over at the end of September.

The AP needs more representation.

We expect the new IANA to listen to the comments made here.

I have learned some alternative ways to hold a meeting, which was good. I also picked up some specific regional viewpoints.

Two details surfaced at this meeting that haven't been appreciated previously: the US was concerned about government intervention and it was suggested to have none, however, in this part of the world that is not a balanced suggestion and we know that now. The other thing is to pay more attention to the future users for things such as IP address scarcity for places like China.

This meeting had a lot more information sharing than previous meetings. The process of what we are doing is evolving and we are more clear about things now.

This conference was significantly more polite. We have to deal with issues of today, and build paths for tomorrow.

A lot of the interests are people not yet using the Internet. We need to build flexibility for people in these countries. The Australian Government is committed to making this work from a self regulation point of view at the speed that this marketplace needs. To look after the needs of the people from a policy view, it needs to have time spent on the issues. We are very conscious (government) of what we need for the region. This region is very diverse, it's not like Europe. The Australian government is going to take up some of the views of AP participants. People should stop thinking about internecine warfare. This really needs to be self regulated by industry, but don't leave it so that down the track some governments can turn around and say we are not being included in this.

From the South American perspective, we need more information in Spanish. For the Buenos Aires meeting there will be simultaneous translation to English and Portuguese.

Wrap up by Tamar Frankel, Conference Chair:

This meeting is closed, but this is also the beginning. We are continuing the dialogue and the issues will change, but we will create a tradition of interaction that is acceptable to all of us.