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DIDP Request #18 - ICANN’s Internal Website will Stay Internal
http://editors.cis-india.org/internet-governance/blog/didp-request-18-icann2019s-internal-website-will-stay-internal
<b>ICANN maintains an internal website accessible to staff and employees. We requested ICANN to provide us with a document with the contents of that website in the interest of transparency and accountability.</b>
<p style="text-align: justify; "><span id="docs-internal-guid-6ae20cf4-3723-9313-1ca4-571610febfac">The request filed by Padmini Baruah can be found </span><a href="https://www.icann.org/en/system/files/files/didp-request-20150901-6-01sep15-en.pdf"><span>here</span></a><span>. To no one’s surprise, not only did ICANN not have this document in “ICANN's possession, custody, or control,” even if it did it would be subject to <a class="external-link" href="https://www.icann.org/resources/pages/didp-2012-02-25-en">DIDP conditions for non-disclosure</a>.</span></p>
<p style="text-align: justify; "><span><span id="docs-internal-guid-6ae20cf4-3724-8d54-05ca-866fe5bc62b5">ICANN's response to our DIDP request may be found </span><a href="https://www.icann.org/en/system/files/files/didp-response-20150901-6-cis-wiki-01oct15-en.pdf"><span>here</span></a><span>.</span></span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/didp-request-18-icann2019s-internal-website-will-stay-internal'>http://editors.cis-india.org/internet-governance/blog/didp-request-18-icann2019s-internal-website-will-stay-internal</a>
</p>
No publisherasvathaICANNDIDPInternet Governance2016-07-29T14:53:50ZBlog EntryDIDP Request #17 - How ICANN Chooses their Contractual Compliance Auditors
http://editors.cis-india.org/internet-governance/blog/didp-request-17-how-icann-chooses-their-contractual-compliance-auditors
<b>At a congressional hearing on internet governance and progress, then President of ICANN Fadi Chehadi indicated that the number of people working on compliance audits grew substantially—from 6 to 24 (we misquoted it as 25)— in the span of a few years.</b>
<p style="text-align: justify; "><span id="docs-internal-guid-88ef1d6f-3472-3cd6-bf11-e5bb7d2ea6a9">It is clear to us at CIS that the people in charge of these compliance audits perform an important function at ICANN. To that effect, we requested information on the 24 individuals mentioned by Mr Chehadi as well as the third party auditors who perform this powerful watchdog function. More specifically, we requested documents calling for appointments of the auditors and copies of their contracts with ICANN.</span></p>
<p style="text-align: justify; "><span><span id="docs-internal-guid-88ef1d6f-3472-5ef2-432a-dbb3e446057d">The request filed by Padmini Baruah can be found </span><a href="https://www.icann.org/en/system/files/files/didp-request-20150901-5-01sep15-en.pdf"><span>here</span></a><span>.</span></span></p>
<h3 style="text-align: justify; "><span><span>What ICANN said</span></span></h3>
<p dir="ltr" id="docs-internal-guid-88ef1d6f-3472-81e4-8a58-7815de9e725d" style="text-align: justify; "><span>In their response to the first part of our question, ICANN linked us to a webpage containing the names and titles of all employees working on contractual compliance. This page contains 26 names including the Contractual Compliance Risk and Audit Manager: </span><a href="https://www.icann.org/resources/pages/about-2014-10-10-en"><span>https://www.icann.org/resources/pages/about-2014-10-10-en</span></a></p>
<p dir="ltr" id="docs-internal-guid-88ef1d6f-3472-cda1-dd73-6b12b9aa1fc5" style="text-align: justify; "><span>ICANN also described the process of selecting KPMG as their third party auditor in detail. A pre-selection process shortlists 5 companies that fit the following criteria: knowledge of ICANN, global presence, size, expertise and reputation. Then, ICANN issues a targeted Request For Proposal (RFP) to these companies asking them for their audit proposals. After a question and answer session, a proposal analysis and rating the scorecards, a “cross-functional steering committee” decided to go with KPMG. While the process has been discussed transparently, our questions remain unanswered.</span></p>
<p dir="ltr" id="docs-internal-guid-88ef1d6f-3473-0cee-aa58-9889a6de22eb" style="text-align: justify; "><span>The RFP would qualify as the document requested by us in the second part of the question (i.e.) a “document that calls for appointments to the post of the contractual compliance auditor.” Unfortunately, ICANN has not published the RFP citing the DIDP Conditions for Non-disclosure. However, the timeline for the RFP and other details have been posted </span><a href="https://www.icann.org/resources/pages/governance/rfps-en"><span>here</span></a><span> after our DIDP request. In addition, the contract between KPMG and ICANN has also not been published. </span></p>
<p dir="ltr" id="docs-internal-guid-88ef1d6f-3473-2c8e-1679-7191963f7ad9" style="text-align: justify; "><span>ICANN's response to our DIDP request may be found </span><a href="https://www.icann.org/en/system/files/files/didp-response-20150901-5-cis-auditor-appt-01oct15-en.pdf"><span>here</span></a><span>. </span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/didp-request-17-how-icann-chooses-their-contractual-compliance-auditors'>http://editors.cis-india.org/internet-governance/blog/didp-request-17-how-icann-chooses-their-contractual-compliance-auditors</a>
</p>
No publisherasvathaICANNDIDPInternet Governance2016-07-29T02:20:59ZBlog EntryDIDP Request #16 - ICANN has no Documentation on Registrars’ “Abuse Contacts”
http://editors.cis-india.org/internet-governance/blog/didp-request-16-icann-has-no-documentation-on-registrars2019-201cabuse-contacts201d
<b>Registrars on contract with ICANN are required to maintain an “abuse contact” - a 24/7 dedicated phone line and e-mail address to receive reports of abuse regarding the registered names sponsored by the registrar.</b>
<p style="text-align: justify; ">We wrote to ICANN requesting information on these abuse complaints received by registrars over the last year. We specifically wanted reports of illegal activity on the internet submitted to these abuse contacts as well as details on actions taken by registrars in response to these complaints.</p>
<p style="text-align: justify; "><span id="docs-internal-guid-9b05b54d-3465-1c5e-3830-7af0d8e37b19">The request filed by Padmini Baruah can be found </span><a href="https://www.icann.org/en/system/files/files/didp-request-20150901-4-01sep15-en.pdf"><span>here</span></a><span>.</span></p>
<h3 style="text-align: justify; "><span>What ICANN said</span></h3>
<p style="text-align: justify; "><span>Our request to ICANN very specifically dealt with reported illegal activities. However, in their response, ICANN first broadened it to abuse complaints and then failed to give a narrowed down list of even those complaints.</span></p>
<p style="text-align: justify; "><span>In their response, ICANN indicated that they do not store records of complaints made to the abuse contact. This is stored by the registrars and is available to ICANN only upon request. However, since ICANN is only obliged to publish documents it already has in its possession, we did not receive an answer to our first question. </span></p>
<p style="text-align: justify; "><span><span id="docs-internal-guid-9b05b54d-3467-44df-1aed-bbe876d6dc71">As for the second item, ICANN gave a familiarly vague answer, linking us to the</span><a href="https://www.icann.org/compliance/notices"><span> Contractual Compliance Complaints</span></a><span> page with a list of all the breach notices that have been issued by ICANN to registrars. A breach notice is relevant to our request only if it is in response to an abuse complaint, and the abuse complaint specifically deals with illegal activity. Even discounting that, this is not a comprehensive list when you take into account that a breach notice is published only “if a </span><span>formal contractual compliance enforcement process has been initiated </span><span>relating to an abuse complaint and resulted in a breach.”<a href="#ftn1">[1] </a>What about the rest of the complaints received by the registrar?</span></span></p>
<p style="text-align: justify; "><span><span>In addition, ICANN refused to publish any communication or documentation of ICANN requesting reports of illegal activity under the DIDP non-disclosure conditions. <br /></span></span></p>
<p style="text-align: justify; "><span><span><span id="docs-internal-guid-9b05b54d-3469-bdb4-1603-805eb7dc6a97">ICANN's response to our DIDP request may be found </span><a href="https://www.icann.org/en/system/files/files/didp-response-20150901-4-cis-abuse-complaints-01oct15-en.pdf"><span>here</span></a><span>.</span></span></span></p>
<hr />
<p dir="ltr" id="docs-internal-guid-9b05b54d-346a-e343-097c-9bedf6f32f17"><a name="ftn1">[1] </a><span>See ICANN response here (Pg 4): https://www.icann.org/en/system/files/files/didp-response-20150901-4-cis-abuse-complaints-01oct15-en.pdf</span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/didp-request-16-icann-has-no-documentation-on-registrars2019-201cabuse-contacts201d'>http://editors.cis-india.org/internet-governance/blog/didp-request-16-icann-has-no-documentation-on-registrars2019-201cabuse-contacts201d</a>
</p>
No publisherasvathaICANNDIDPInternet Governance2016-07-29T02:11:52ZBlog EntryDIDP Request #15: What is going on between Verisign and ICANN?
http://editors.cis-india.org/internet-governance/blog/didp-request-15-what-is-going-on-between-verisign-and-icann
<b>During a hearing of the House Committee on Energy and Commerce on “Internet Governance Progress After ICANN 53,” President and CEO of ICANN - Mr Fadi Chehade indicated that ICANN follows up with registries and registrars on receipt of any complaint against them about violations of their contract with ICANN.</b>
<p style="text-align: justify; ">At CIS, we believe that any exchange of dialogue or any outcome from ICANN acting on these complaints needs to be in the public domain. Thus, our 15th DIDP request to ICANN were for documents pertinent to Verisign’s contractual compliance and actions taken by ICANN stemming from any discrepancies of Verisign’s compliance with its ICANN contract.</p>
<p style="text-align: justify; "><span id="docs-internal-guid-f679a3d5-345d-67c5-6d95-690f07d56d1f">The DIDP request filed by Padmini Baruah can be found </span><a href="https://www.icann.org/en/system/files/files/didp-request-20150901-3-01sep15-en.pdf"><span>here</span></a><span>.</span></p>
<h3 style="text-align: justify; "><span>What ICANN said</span></h3>
<p style="text-align: justify; "><span>After sorting through a response designed to obfuscate information, it was clear that ICANN was not going to provide any of the details we requested. As mentioned in their previous responses, individual audit reports and the names of the registries associated with discrepancies are confidential under the DIDP Defined Conditions of Nondisclosure. Nevertheless, some details from the response are worth mentioning.</span></p>
<p style="text-align: justify; "><span>According to the response, “As identified in Appendix B of the 2012 Contractual Compliance Year One Audit Program Report, the following TLDs were selected for auditing: DotAsia Organisation Limited (.ASIA), Telnic Limited (.TEL), Public Interest Registry (.ORG), Verisign (.NET), Afilias (.INFO), and Employ Media LLC (.JOBS).” The response goes on to state that out of these 6 registries that were selected, only 5 chose to participate in the audit, the identies of which are once again confidential. </span></p>
<p style="text-align: justify; "><span>However, on further examination, it can be seen that Verisign (.NET) was chosen to participate in the audit the year after as well. Therefore, it’s clear that 2013 was the year Verisign was audited. Unfortunately, that was pretty much all that was relevant to our request in ICANN’s response.</span></p>
<p style="text-align: justify; "><span>Once again, ICANN was able to use the DIDP Defined Conditions of Nondisclosure, especially the following conditions to allow itself the ability not to answer the public: <br /></span></p>
<ul style="text-align: justify; ">
<li><span>Information exchanged, prepared for, or derived from the deliberative and decision-making process between ICANN, its constituents, and/or other entities with which ICANN cooperates that, if disclosed, would or would be likely to compromise the integrity of the deliberative and decision-making process between and among ICANN, its constituents, and/or other entities with which ICANN cooperates by inhibiting the candid exchange of ideas and communications.</span><span> </span></li>
<li><span>Information provided to ICANN by a party that, if disclosed, would or would be likely to materially prejudice the commercial interests, financial interests, and/or competitive position of such party or was provided to ICANN pursuant to a nondisclosure agreement or nondisclosure provision within an agreement.</span><span> </span></li>
<li><span>Confidential business information and/or internal policies and procedures.<a href="#ftn1">[1]</a></span><span> <br /></span></li>
</ul>
<p style="text-align: justify; "><span id="docs-internal-guid-f679a3d5-345f-fcdf-ba09-26b6f74477d8">ICANN’s response to our request can be found </span><a href="https://www.icann.org/en/system/files/files/didp-response-20150901-3-cis-contractual-violations-verisign-01oct15-en.pdf"><span>here</span></a><span>.</span></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><a name="ftn1">[1] </a><span id="docs-internal-guid-f679a3d5-3461-1364-7277-525329280407">See DIDP https://www.icann.org/resources/pages/didp-2012-02-25-en</span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/didp-request-15-what-is-going-on-between-verisign-and-icann'>http://editors.cis-india.org/internet-governance/blog/didp-request-15-what-is-going-on-between-verisign-and-icann</a>
</p>
No publisherasvathaICANNDIDPInternet Governance2016-07-29T02:01:06ZBlog EntryDIDP Request #14: Keeping track of ICANN’s contracted parties: Registrars
http://editors.cis-india.org/internet-governance/blog/didp-request-14-keeping-track-of-icann2019s-contracted-parties-registrars
<b>In September 2016, we filed two separate DIDP requests regarding ICANN’s Contractual Compliance Goals.</b>
<p><span id="docs-internal-guid-bf51bf89-322e-256d-7606-417c64dfd392">The first one which we have written about here,</span><a href="#ftn1">[1] </a>was regarding ICANN contracts with registries while the second one about registrars is briefed below. In our second request, we specifically asked for the following information:</p>
<ol>
<li>Copies of the registrar contractual compliance audit reports for all the audits carried out as well as external audit reports from the last year (2014-2015).</li>
<li>A generic template of the notice served by ICANN before conducting such an audit.</li>
<li>A list of the registrars to whom such notices were served in the last year.</li>
<li>An account of the expenditure incurred by ICANN in carrying out the audit process.</li>
<li>A list of the registrars that did not respond to the notice within a reasonable period of time.</li>
<li>Reports of the site visits conducted by ICANN to ascertain compliance.</li>
<li>Documents which identify the registrars who had committed material discrepancies in the terms of the contract.</li>
<li>Documents pertaining to the actions taken in the event that there was found to be some form of contractual non-compliance.</li>
<li>A copy of the registrar self-assessment form which is to be submitted to ICANN. </li>
</ol>
<p>The DIDP request filed by Padmini Baruah can be viewed here.</p>
<h3>What ICANN said</h3>
<p><span id="docs-internal-guid-bf51bf89-3234-6693-c084-c898ecb92ff6">Information pertinent to item 1 and 3 can be found in the 2014 Contractual Compliance Annual Report here:https://</span><a href="http://www.icann.org/en/system/files/files/annual-2014-13feb15-en.pdf"><span>www.icann.org/en/system/files/files/annual-2014-13feb15-en.pdf</span></a><span>. While this report contains detailed information regarding the audit, individual audit reports are subject to the DIDP Defined Conditions for Nondisclosure.</span></p>
<p style="text-align: justify; "><span><span id="docs-internal-guid-bf51bf89-3234-d617-f932-ee71027bdaf6">ICANN provided a link to all the communication templates used during the audit process, including the notice served by ICANN prior to conducting audits. (Item 2) It can be found here:</span><a href="https://www.icann.org/en/system/files/files/audit-communication-template-04dec15-en.pdf"><span> </span><span>https://www.icann.org/en/system/files/files/audit-communication-template-04dec15-en.pdf</span></a><span>. As mentioned in an earlier blog post, ICANN set aside USD 0.6 million for the Three Year Audit plan.<a href="#ftn2">[2] </a>(item 4)</span></span></p>
<p style="text-align: justify; "><span><span>According to the Audit FAQ on ICANN website,<a href="#ftn3">[3]</a> <span id="docs-internal-guid-bf51bf89-323a-156a-af6f-d315baa30ccd">“If a contracted party reaches the enforcement phase per process, ICANN will issue a notice of breach in which the outstanding issues are noted. The response links us to the ICANN webpage where these breach notices are listed:</span><a href="https://www.icann.org/compliance/notices#notices-2014"><span> </span><span>https://www.icann.org/compliance/notices#notices-2014</span></a><span>. (Item 5) According to the link, 61 registrars received breach notices in 2014; a full explanation has been provided for each notice. (Item 7 and 8) Since no site visits were conducted, ICANN does not possess any document regarding this.</span></span></span></p>
<p style="text-align: justify; "><span><span><span><span>According to the ICANN website, “The 2013 Registrar Accreditation Agreement (RAA) requires ICANN-accredited registrars to complete an annual self-assessment and provide ICANN with a compliance certification by 20 January.”<a href="#ftn4">[4] </a><span id="docs-internal-guid-bf51bf89-3244-56d6-a94a-37347d37616b">The form for the same can be found here: </span><a href="https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en#compliance"><span>https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en#compliance</span></a></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span id="docs-internal-guid-bf51bf89-3244-91f8-830f-b40c5a82d02a">ICANN’s response to our request can be found </span><a href="https://www.icann.org/en/system/files/files/didp-response-20150901-1-response-20150901-2-cis-ry-rr-audits-01oct15-en.pdf"><span>here</span></a><span>.</span></span></span></span></span></span></p>
<hr />
<p><a name="ftn1">[1] </a><span id="docs-internal-guid-bf51bf89-3258-80b4-c7aa-aea9801aceac">To be linked to the first post</span></p>
<p><a name="ftn2">[2] </a><span id="docs-internal-guid-bf51bf89-3258-28cd-a693-d1605b22ce9e">See FY15 budget (pg72): </span><a href="https://www.icann.org/en/system/files/files/adopted-opplan-budget-fy15-01dec14-en.pdf"><span>https://www.icann.org/en/system/files/files/adopted-opplan-budget-fy15-01dec14-en.pdf</span></a></p>
<p><a name="ftn3">[3] </a><span id="docs-internal-guid-bf51bf89-3257-ded2-6793-607c741261a7">See Audit FAQ: https://www.icann.org/resources/pages/faqs-2012-10-31-en</span></p>
<p><a name="ftn4">[4] </a>See CEO certification: https://www.icann.org/resources/pages/ceo-certification-2014-01-29-en</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/didp-request-14-keeping-track-of-icann2019s-contracted-parties-registrars'>http://editors.cis-india.org/internet-governance/blog/didp-request-14-keeping-track-of-icann2019s-contracted-parties-registrars</a>
</p>
No publisherasvathaICANNDIDPInternet Governance2016-07-28T16:34:27ZBlog EntryDIDP Request #13: Keeping track of ICANN’s contracted parties: Registries
http://editors.cis-india.org/internet-governance/blog/didp-request-13-keeping-track-of-icann2019s-contracted-parties-registries
<b>On multiple occasions, Fadi Chehade, then President and CEO of ICANN has emphasized the importance of conducting audits (internal and external) to ensure compliance of ICANN’s contracted parties. At a US congressional hearing, he spoke about the contract monitoring function of ICANN. </b>
<p style="text-align: justify; ">In September 2015, we filed two separate DIDP requests regarding ICANN’s Contractual Compliance Goals. The first one, briefed below, is regarding the contracts with registries and the second one is regarding ICANN contracts with registrars. This post contains some additional background information on the Contractual Compliance Goals at ICANN. In our first request, we specifically asked for the following information:</p>
<ol style="text-align: justify; ">
<li>Copies of the registry contractual compliance audit reports for all the audits carried out as well as external audit reports from the last year (2014-2015).</li>
<li>A generic template of the notice served by ICANN before conducting such an audit. </li>
<li>A list of the registries to whom such notices were served in the last year. </li>
<li>An account of the expenditure incurred by ICANN in carrying out the audit process. </li>
<li>A list of the registries that did not respond to the notice within a reasonable period of time. </li>
<li>Reports of the site visits conducted by ICANN to ascertain compliance.</li>
<li>Documents which identifies the registry operators who had committed material discrepancies in the terms of the contract. </li>
<li>Documents pertaining to the actions taken in the event that there was found to be some form of contractual non-compliance. </li>
</ol>
<p style="text-align: justify; "><span id="docs-internal-guid-36e025c6-3214-1f40-f34c-66e56df641b6">The DIDP request filed by Padmini Baruah can be viewed </span><a href="https://www.icann.org/en/system/files/files/didp-request-20150901-1-01sep15-en.pdf"><span>here</span></a><span>.</span></p>
<h3 style="text-align: justify; "><span>What ICANN said</span></h3>
<p style="text-align: justify; "><span>ICANN’s Contractual Compliance Goal is to ensure that all the parties that ICANN has entered into a contract with complies with the stipulations of the contract. This is done in several ways, including Contractual Compliance complaints and Audits.<a href="#ftn1">[1]</a></span></p>
<p dir="ltr" id="docs-internal-guid-36e025c6-3223-35f4-9e89-5d38d93e81e3" style="text-align: justify; "><span>In 2012, ICANN initiated the Three Year Audit plan where one-third of registries were selected each year for an audit. In 2014, the third set of registries were audited. In response to Item 1, information about the audit for 2014 can be found here: </span><a href="https://www.icann.org/en/system/files/files/contractual-compliance-ra-audit-report-2014-03feb15-en.pdf"><span>https://www.icann.org/en/system/files/files/contractual-compliance-ra-audit-report-2014-03feb15-en.pdf</span></a><span>. At this link, we can also find the list of registries that went through the audit process in 2014 (item 3). Monthly updates on overall contractual compliance can be found here:</span><a href="https://www.icann.org/resources/pages/update-2013-03-15-en"><span> </span><span>https://www.icann.org/resources/pages/update-2013-03-15-en</span></a><span>. </span></p>
<p dir="ltr" id="docs-internal-guid-36e025c6-3223-80b1-a31b-01ccfb91f71d" style="text-align: justify; "><span>ICANN linked us to all the communication templates used during the audit process, including the notice served by ICANN prior to conducting audits. (Item 2) It can be found here: </span><a href="https://www.icann.org/en/system/files/files/audit-communication-template-04dec15-en.pdf"><span>https://www.icann.org/en/system/files/files/audit-communication-template-04dec15-en.pdf </span></a></p>
<p dir="ltr" style="text-align: justify; "><span><span id="docs-internal-guid-36e025c6-3223-c0d0-b744-b06fc20af7d3">In the operating plan and budget for FY15, ICANN sets aside USD 0.2 million for the New Registry Agreement Audit and USD 0.6 million for the Three Year Audit plan.<a href="#ftn2">[2]</a></span></span></p>
<p dir="ltr" style="text-align: justify; "><span><span>Other documents to answer this question such as invoices from the external auditing firm are subject to non-disclosure under DIDP policies. Since all registries responded in a timely manner and no site visits were conducted, there are no documents to answer items 5 and 6. </span></span></p>
<p dir="ltr" style="text-align: justify; "><span><span>The audit report linked above contains information on deficiencies identified during the audit. ICANN states that registries addressed these deficiencies during the remediation process. However, there is a caveat to this discussion. The names of the registries that are associated with these discrepancies remains confidential, subject to the DIDP Defined Conditions for Nondisclosure. (Item 7) ICANN goes on to state that it is not required to confirm if the registries have taken appropriate action and thus does not have any documents in response to item 8. While ICANN’s audit process seems thorough, does this last statement indicate a lack of enforcement mechanisms on ICANN’s part? <br /></span></span></p>
<p dir="ltr" id="docs-internal-guid-36e025c6-3225-cbec-186e-0694f7918168" style="text-align: justify; "><span>ICANN’s response to our request can be found </span><a href="https://www.icann.org/en/system/files/files/didp-response-20150901-1-response-20150901-2-cis-ry-rr-audits-01oct15-en.pdf"><span>here</span></a><span>.</span></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><a name="ftn1">[1]. </a><span id="docs-internal-guid-36e025c6-3227-7c19-f04b-6258c3ad1fbc">See Contractual Compliance website: https://www.icann.org/resources/pages/compliance-2012-02-25-en</span></p>
<p style="text-align: justify; "><a name="ftn2">[2]. </a><span id="docs-internal-guid-36e025c6-3228-1009-f91a-30ea4972689f">See FY15 budget (pg72): </span><a href="https://www.icann.org/en/system/files/files/adopted-opplan-budget-fy15-01dec14-en.pdf"><span>https://www.icann.org/en/system/files/files/adopted-opplan-budget-fy15-01dec14-en.pdf</span></a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/didp-request-13-keeping-track-of-icann2019s-contracted-parties-registries'>http://editors.cis-india.org/internet-governance/blog/didp-request-13-keeping-track-of-icann2019s-contracted-parties-registries</a>
</p>
No publisherasvathaICANNDIDPInternet Governance2016-07-28T15:40:01ZBlog EntryDIDP Request #9 - Exactly how involved is ICANN in the NETmundial Initiative?
http://editors.cis-india.org/internet-governance/blog/didp-request-9-exactly-how-involved-is-icann-in-the-netmundial-initiative
<b>The importance and relevance of knowing ICANN’s involvement in the NETmundial Initiative cannot be overstated.</b>
<p style="text-align: justify; ">It was reported recently that ICANN contributed US$200,000 to the Initiative.<a href="#ftn1">[1] </a>Following this report, we requested the details of all expenses incurred by ICANN for NMI till date. This includes formal contributions to NMI as well as costs incurred towards travel and accommodation of ICANN board and staff to meetings relevant to the NMI discussion.</p>
<p style="text-align: justify; ">Apart from these financial details, we also requested information regarding the number of staff working on NMI from ICANN and the hours clocked by them for the same. We further specified that we would like this information to gauge ICANN’s involvement beyond its technical mandate. <span id="docs-internal-guid-fb3cc834-2cf9-6ca2-744a-a463d372cec8">The request filed by </span><span>Geetha Hariharan</span><span> can be found </span><a href="https://www.icann.org/en/system/files/files/cis-request-13jan15-en.pdf"><span>here</span></a><span>.</span></p>
<h3 style="text-align: justify; "><span>What ICANN said</span></h3>
<p style="text-align: justify; "><span>In its response, ICANN separated the questions in the request into two categories: a) Expenses incurred by ICANN towards the NETmundial Initiative and b) Other resources (personnel and hours) allocated to the Initiative by ICANN. The first category in the request includes: formal contribution to the NETmundial Initiative; travel costs of ICANN board and staff; and costs of maintenance of other sponsored parties. The second includes the number of staff involved in the NETmundial Initiative from ICANN and the number of hours spent working on it.</span></p>
<p style="text-align: justify; "><span>To answer both, the response directs us to the Memorandum of Collaboration (MOC)<a href="#ftn2">[2]</a><span id="docs-internal-guid-fb3cc834-2cff-6122-a30e-e27cf1377dd2">signed by the Brazilian Internet Steering Committee (</span><a href="http://cgi.br"><span>CGI.br</span></a><span>), ICANN and the World Economic Forum (WEF) to set up the NETmundial Initiative according to the outcome document from the initial NETmundial meeting in Sao Paulo, Brazil. </span></span></p>
<p style="text-align: justify; "><span><span>Some of the important takeaways from the MOC that are relevant to our request are the following:</span></span></p>
<ul style="text-align: justify; ">
<li><span><span>Each party to the MOC agrees to pay $201,667 towards operational expenses on signature of the agreement.</span></span><span><span> </span></span></li>
<li><span><span>Total anticipated cost of the NETmundial Initiative is $605,000 (also mentioned in the response).</span></span><span><span> </span></span></li>
<li><span><span>Each party will assign 1 staff member to the NETmundial Initiative secretariat during the inaugural period to smoothen the process. This staff member will commit at least 50% of their time towards Secretariat work.</span></span></li>
</ul>
<p style="text-align: justify; "><span><span>This information is important but it does not provide a comprehensive answer to our query. It does not, for example, answer if ICANN contributed anything more than the $201,667 the MOC specifies. It also does not tell us if ICANN allotted any staff apart from the designated secretariat member to work on NETmundial Initiative.</span></span></p>
<p style="text-align: justify; "><span><span>Further, the response states that ICANN does not keep track of costs according to the number of hours or the topic but rather according to strategic objectives. Since ICANN is not required to create a document that does not already exist to answer a DIDP enquiry,<a href="#ftn3">[3] </a>we have no way of knowing the specific amount of time or money spent on the NETmundial Initiative by ICANN. The response instead directs us to the financial presentation at ICANN50 where the costs of attending the NETmundial Meeting at Sao Paulo is detailed. While this is interesting (ICANN spent $1.5 million)<a href="#ftn4">[4] </a></span></span>it is not a satisfactory answer to our question.</p>
<p style="text-align: justify; ">ICANN justifies its lack of direct answers by expressing that not only is the request “overbroad", it is also “subject to the following DIDP Condition of Nondisclosure: Information requests: (i) which are not reasonable; (ii) which are excessive or overly burdensome; and (iii) complying with which is not feasible.”<a href="#ftn5">[5] </a></p>
<p style="text-align: justify; "><span id="docs-internal-guid-fb3cc834-2d0e-b79e-fcb8-784e3a998046">ICANN's response to our DIDP request may be found </span><a href="https://www.icann.org/en/system/files/files/cis-response-12feb15-en.pdf"><span>here</span></a><span>.</span></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><a name="ftn1">[1] </a><span id="docs-internal-guid-fb3cc834-2d0d-0c56-8105-394e1c8d2cac">See McCarthy, </span><span>‘I’m Begging You To Join’ – ICANN’s NETmundial Initiative gets desperate</span><span>, THE REGISTER (12 December 2014), </span><span>http://www.theregister.co.uk/2014/12/12/im begging you to join netmundial initiative gets d esperate/</span></p>
<p style="text-align: justify; "><a name="ftn2">[2] </a>See MOC: https://www.netmundial.org/sites/default/files/MOC-%20CGI.br,%20ICANN%20&%20WEF.pdf</p>
<p style="text-align: justify; "><a name="ftn3">[3] </a><span id="docs-internal-guid-fb3cc834-2d0b-01ff-7d33-5afd3d4e7aec">See Disclosure Policy: https://www.icann.org/resources/pages/didp-2012-02-25-en</span></p>
<p style="text-align: justify; "><a name="ftn4">[4] </a>See ICANN50 Finance Presentation (Pg 4): https://london50.icann.org/en/schedule/thu-finance/presentation-finance-26jun14-en</p>
<p style="text-align: justify; "><a name="ftn5">[5] </a>See ICANN conditions for non-disclosure: https://www.icann.org/resources/pages/didp-2012-02-25-en</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/didp-request-9-exactly-how-involved-is-icann-in-the-netmundial-initiative'>http://editors.cis-india.org/internet-governance/blog/didp-request-9-exactly-how-involved-is-icann-in-the-netmundial-initiative</a>
</p>
No publisherasvathaICANNDIDPInternet Governance2016-07-27T15:53:22ZBlog EntryDIDP Request #10 - ICANN does not know how much each RIR contributes to its Budget
http://editors.cis-india.org/internet-governance/blog/didp-request-10-icann-does-not-know-how-much-each-rir-contributes-to-its-budget
<b>In an effort to understand the relationship between the Regional Internet Registries (RIRs) and ICANN, we requested current and historical information on the contract fees paid by the five RIRs (AfriNIC, ARIN, APNIC, LACNIC and RIPE NCC) to ICANN annually.</b>
<p style="text-align: justify; ">We acknowledged that the independently audited financial reports on ICANN’s website list the total amount from all RIRs as a lump sum.<a href="#ftn1">[1] </a>However, we specifically sought a breakdown of these fees detailing contributions made by each RIR from 1999 to 2014. Not only will this information help understand the RIR-ICANN relationship, it will also be relevant to the IANA transition.</p>
<p style="text-align: justify; ">The request filed by Protyush Choudhury can be found <a class="external-link" href="https://www.icann.org/en/system/files/files/cis-request-06feb15-en.pdf">here</a>.</p>
<h3 style="text-align: justify; ">What ICANN said</h3>
<p style="text-align: justify; ">According to ICANN’s response to our request, the five RIRs (AfriNIC, ARIN, APNIC, LACNIC and RIPE NCC) make a voluntary annual contribution to ICANN’s budget through the Number Resource Organization (NRO). <a href="#ftn2">[2] </a> Since Financial Year 2000, this contribution has been made to ICANN as an aggregate amount without the kind of breakdown requested by us with the exception of FY03, FY04 and FY05. The breakdown of the contribution for those years is as below:</p>
<ul style="text-align: justify; ">
<li>FY03: APNIC - $129,400; ARIN - $159,345; RIPE - $206,255</li>
<li>FY04: APNIC - $160,500; ARIN - $144,450; RIPE - $224,700; LACNIC - $5,350</li>
<li>FY05: APNIC - $220,976; ARIN - $218,507; RIPE - $358,086; LACNIC - $25,431</li>
</ul>
<p style="text-align: justify; ">The response links back to the independent financial reports mentioned by us in the request. <span id="docs-internal-guid-ca5a7bda-2a44-cdfd-627f-3534a44a9ae4">These reports can be found on the ICANN website </span><a href="https://www.icann.org/resources/pages/governance/current-en"><span>here</span></a><span>.</span></p>
<p style="text-align: justify; "><span>On closer examination of the audit reports of FY03, 04 and 05, it is clear that the information provided in their response is either incomplete or incorrect. According to KPMG’s audit report of FY03, the total contribution from Address Registries is US$535,000. The breakdown in the response adds up only to $494,600. The response does not account for the extra $40,400. If only APNIC, ARIN and RIPE contributed to ICANN in 2003, where did the other $40,400 come from? Moreover, why is it listed as an Address Registry Fee in the audit report if it was a voluntary contribution?</span><a href="#ftn3">[3]</a></p>
<p style="text-align: justify; ">The “Address Registry Fees” in the audit reports for FY04 and FY05 match the amounts in the response: $535,000 and $823,00 respectively. <span id="docs-internal-guid-ca5a7bda-2a48-4c9a-4b9e-1793f74078dd">ICANN's response to our DIDP request may be found </span><a href="https://www.icann.org/en/system/files/files/cis-response-08mar15-en.pdf"><span>here</span></a><span>.</span></p>
<p style="text-align: justify; "><span>For the reader’s reference, the audit reports for FY00 - FY14 are linked below:</span></p>
<ul style="text-align: justify; ">
<li><span>FY00: </span><a href="https://www.icann.org/resources/unthemed-pages/financial-report-fye-2000-06-30-en"><span>https://www.icann.org/resources/unthemed-pages/financial-report-fye-2000-06-30-en </span></a></li>
<li><span>FY01: </span><a href="https://www.icann.org/resources/unthemed-pages/financial-report-fye-2001-06-30-en"><span>https://www.icann.org/resources/unthemed-pages/financial-report-fye-2001-06-30-en</span></a></li>
<li><span>FY02:</span><a href="https://www.icann.org/resources/unthemed-pages/financial-report-fye-2002-06-30-en"><span> </span><span>https://www.icann.org/resources/unthemed-pages/financial-report-fye-2002-06-30-en</span></a></li>
<li><span>FY03: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun03-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun03-en.pdf</span></a></li>
<li><span>FY04: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun04-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun04-en.pdf</span></a></li>
<li><span>FY05: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun05-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun05-en.pdf</span></a></li>
<li><span>FY06: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun06-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun06-en.pdf</span></a></li>
<li><span>FY07: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun07-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun07-en.pdf</span></a></li>
<li><span>FY08: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun07-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun08-en.pdf</span></a></li>
<li><span>FY09: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun09-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun09-en.pdf</span></a></li>
<li><span>FY10:</span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun10-en.pdf"><span> https://www.icann.org/en/system/files/files/financial-report-fye-30jun10-en.pdf</span></a></li>
<li><span>FY11: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun11-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun11-en.pdf</span></a></li>
<li><span>FY12: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun12-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun12-en.pdf</span></a></li>
<li><span>FY13:</span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun13-en.pdf"><span> https://www.icann.org/en/system/files/files/financial-report-fye-30jun13-en.pdf</span></a></li>
<li> <span>FY14: </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun14-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun14-en.pdf</span></a></li>
</ul>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><a name="ftn1">[1] </a><span id="docs-internal-guid-ca5a7bda-2a4b-7429-43b1-6785f6f611ea">See audited financial reports: </span><a href="https://www.icann.org/resources/pages/governance/current-en"><span>https://www.icann.org/resources/pages/governance/current-en</span></a></p>
<p style="text-align: justify; "><a name="ftn2">[2] </a><span id="docs-internal-guid-ca5a7bda-2a4b-2ee6-07b6-012828ea134f">See letter from NRO to ICANN:</span><a href="https://www.icann.org/en/system/files/files/akplogan-to-twomey-23mar09-en.pdf"><span> </span><span>https://www.icann.org/en/system/files/files/akplogan-to-twomey-23mar09-en.pdf</span></a></p>
<p dir="ltr" id="docs-internal-guid-ca5a7bda-2a4a-bcc8-755d-d325f935f7e4" style="text-align: justify; "><a name="ftn3">[3]. </a><span>See report for FY03 (pg 4): </span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun03-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun03-en.pdf</span></a><span> </span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/didp-request-10-icann-does-not-know-how-much-each-rir-contributes-to-its-budget'>http://editors.cis-india.org/internet-governance/blog/didp-request-10-icann-does-not-know-how-much-each-rir-contributes-to-its-budget</a>
</p>
No publisherasvathaICANNDIDPInternet Governance2016-07-27T14:57:00ZBlog EntrySubmission by the Centre for Internet and Society on Revisions to ICANN Expected Standards of Behavior
http://editors.cis-india.org/internet-governance/submission-by-the-centre-for-internet-and-society-on-revisions-to-icann-expected-standards-of-behavior
<b>Prepared by Vidushi Marda, with inputs from Dr. Nirmita Narasimhan and Sunil Abraham.</b>
<p> </p>
<p>We at the Centre for Internet and Society (“CIS”) are grateful for the opportunity to comment on the proposed revisions to ICANN’s Expected Standards of Behavior (“Standards”).</p>
<p>Before providing specific comments on the proposed revisions, CIS would like to state for the record our extreme disappointment while noting that there is no indication of the intention to draft and adopt a dedicated anti - harassment policy. We are of the firm opinion that harassment, and particularly sexual harassment, is not only a sensitive topic, but also a deeply complex one. Such a policy should consider scope, procedural questions, redressal and remedies in cases of harassment in general and sexual harassment in particular. A mere change in language to these Standards, however well intentioned, cannot go too far in preventing and dealing with cases of harassment in the absence of a framework within which such instances can be addressed.</p>
<p>Some of the issues that arose at ICANN55 were confusion surrounding the powers and limits of the Ombudsman’s office in dealing with cases of harassment, the exact procedure to be followed for redressal surrounding such incidents, and the appropriate conduct of parties to the matter. There will be no clarity in these respects, even if these proposed changes are to be adopted.</p>
<p>Specifically, the proposed language is problematic and completely inadequate for the following reasons:</p>
<ol><li>
<p><strong>Vague</strong></p>
<p>Terms like “professional conduct” and “appropriate behavior” mean little in the absence of a definition that entails such conduct. These terms could mean vastly different things to each community member and such language will only encourage a misalignment of expectation of conduct between community members. The “general” definition of harassment is at best, an ineffective placeholder, as it does not encompass exactly what kind of behavior would fall under its definition.</p>
</li>
<li>
<p><strong>Fails to consider important scenarios</strong></p>
<p>The proposed language fails to consider situations where some attempts or advances at communication, sexual or otherwise, occur. For example, consider a situation in which one community member stalks another online, and catalogues his/her every move. This is most certainly foreseeable, but will not be adequately covered by the proposed language. Further, terms like “speech or behavior that is sexually aggressive or intimidates” could or could not include types of speech such as art, music, photography etc, depending on who you ask. It also does not explain the use of the word behavior - physical, emotional, professional, online behavior are all possible, but the scope of this term would depend on the interpretation one chooses to apply. In part 4 below, we will demonstrate how ICANN has applied a far more detailed framework for harassment elsewhere.</p>
</li>
<li>
<p><strong>Ignores complexity</strong></p>
<p>In discussions surrounding the incident at ICANN55, a number of issues of arose. These included, inter alia, the definition of harassment and sexual harassment, what constituted such conduct, the procedure to be followed in such cases, the appropriate forum to deal with such incidents and the conduct that both parties are expected to maintain. These questions cannot, and have not been answered or addressed in the proposed change to the Standards. CIS emphasizes the need to understand this issue as one that must imbibe differences in culture, expectation, power dynamics, and options for redressal. If ICANN is to truly be a safe space, such issues must be substantively and procedurally fair for both the accused and the victim. This proposed definition is woefully inadequate in this regard.</p>
</li>
<li>
<p><strong>Superficial understanding of harassment, sexual harassment</strong></p>
<p>The proposed changes do not define harassment, and sexual harassment in an adequate fashion. The change currently reads, “Generally, harassment is considered unwelcome hostile or intimidating behavior -- in particular, speech or behavior that is sexually aggressive or intimidates based on attributes such as race, gender, ethnicity, religion, age, color, national origin, ancestry, disability or medical condition, sexual orientation, or gender identity.” These are subject to broad interpretation, and we have already highlighted the issues that may arise due to this in 1, above. Here, we would like to point to a far more comprehensive definition.</p>
</li></ol>
<p>ICANN’s own Employment Policy includes within the scope of sexual harassment “verbal, physical and visual conduct that creates an intimidating, offensive or hostile working environment, or interferes with work performance.” The policy also states:</p>
<blockquote>Harassing conduct can take many forms and includes, but is not limited to, the following:<br />
<ol><li>Slurs, jokes, epithets, derogatory comments, statements or gestures;</li>
<li>Assault, impeding or blocking another’s movement or otherwise physically interfering with normal work;</li>
<li>Pictures, posters, drawings or cartoons based upon the characteristics mentioned in the first paragraph of this policy.</li></ol>
Sexually harassing conduct includes all of the above prohibited actions, as well as other unwelcome conduct, such as requests for sexual favors, conversation containing sexual comments, and unwelcome sexual advances.”</blockquote>
<p>This definition is not perfect, it does not comprehensively consider advances or attempts at communication, sexual or otherwise, which are unwelcome by the target. Nonetheless, CIS believes that this is a far more appropriate definition that does not include vague metrics that the proposed changes do. Since it is one ICANN has already adopted, it can act as an important stepping stone towards a comprehensive framework.</p>
<p>Like ICANN, UNESCO’s organisational approach has been to adopt a comprehensive <a href="http://www.un.org/womenwatch/osagi/UN_system_policies/(UNESCO)Anti-harassment_Policy.pdf">Anti-Harassment Policy</a> which lays down details of definition, prevention, complaint procedure, investigations, sanctions, managerial responsibility, etc. Acknowledging the cultural sensitivity of harassment particularly in international situations, the policy also recognizes advances or attempts at communication, sexual or otherwise. Most importantly, it states that for conduct to come within the definition of sexual harassment, it “must be unwelcome, i.e. unsolicited and regarded as offensive or undesirable by the victim.”</p>
<h3>Conclusion</h3>
<p>In conclusion, we would like to reiterate the importance of adopting and drafting a dedicated anti-harassment policy and framework. The benefits of safety, certainty and formal redressal mechanisms in cases of harassment cannot be over emphasized.</p>
<p>Importantly, such measures have already been taken elsewhere. The IETF has adopted an <a href="http://tools.ietf.org/html/rfc7776">instrument</a> to address issues of harassment that occur at meetings, mailing lists and social events. This instrument contemplates in detail, problematic behavior, unacceptable conduct, the scope of the term harassment, etc. It further envisages a framework for redressal of complaints, remediation, and even contemplates issues that may arise with such remediation. It is particularly important to note that while it provides a definition of harassment, it also states that "[a]ny definition of harassment prohibited by an applicable law can be subject to this set of procedures, recognising harassment as a deeply personal and subjective experience, and thus encouraging members to take up issues of harassment as per their cultural norms and national laws, which are then considered as per procedures laid down."</p>
<p>A similar effort within the ICANN community is critical.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/submission-by-the-centre-for-internet-and-society-on-revisions-to-icann-expected-standards-of-behavior'>http://editors.cis-india.org/internet-governance/submission-by-the-centre-for-internet-and-society-on-revisions-to-icann-expected-standards-of-behavior</a>
</p>
No publishervidushiPublic AccountabilityInternet GovernanceFeaturedICANNIANA TransitionHomepage2016-06-30T06:07:37ZBlog EntryJurisdiction: The Taboo Topic at ICANN
http://editors.cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann
<b>The "IANA Transition" that is currently underway is a sham since it doesn't address the most important question: that of jurisdiction. This article explores why the issue of jurisdiction is the most important question, and why it remains unaddressed.</b>
<br />
<p>In March 2014, the <a href="https://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions">US government announced</a> that they were going to end the contract they have with ICANN to run the <a href="https://www.iana.org/">Internet Assigned Numbers Authority</a> (IANA), and hand over control to the “global multistakeholder community”. They insisted that the plan for transition had to come through a multistakeholder process and have stakeholders “across the global Internet community”.</p>
<h2 id="why-is-the-u.s.-government-removing-the-ntia-contract">Why is the U.S. government removing the NTIA contract?</h2>
<p>The main reason for the U.S. government's action is that it will get rid of a political thorn in the U.S. government's side: keeping the contract allows them to be called out as having a special role in Internet governance (with the Affirmation of Commitments between the U.S. Department of Commerce and ICANN, the IANA contract, and the cooperative agreement with Verisign), and engaging in unilateralism with regard to the operation of the root servers of the Internet naming system, while repeatedly declaring that they support a multistakeholder model of Internet governance.</p>
<p>This contradiction is what they are hoping to address. Doing away with the NTIA contract will also increase — ever so marginally — ICANN’s global legitimacy: this is something that world governments, civil society organizations, and some American academics have been asking for nearly since ICANN’s inception in 1998. For instance, here are some demands made <a href="https://www.itu.int/net/wsis/docs2/pc3/contributions/sca/hbf-29.doc">in a declaration by the Civil Society Internet Governance Caucus at WSIS, in 2005</a>:</p>
<blockquote>
<p>“ICANN will negotiate an appropriate host country agreement to replace its California Incorporation, being careful to retain those aspects of its California Incorporation that enhance its accountability to the global Internet user community. "ICANN's decisions, and any host country agreement, must be required to comply with public policy requirements negotiated through international treaties in regard to, inter alia, human rights treaties, privacy rights, gender agreements and trade rules. … "It is also expected that the multi-stakeholder community will observe and comment on the progress made in this process through the proposed [Internet Governance] Forum."</p>
</blockquote>
<p>In short: the objective of the transition is political, <a href="http://editors.cis-india.org/internet-governance/blog/">not technical</a>. In an ideal world, we <em>should</em> aim at reducing U.S. state control over the core of the Internet's domain name system.<a href="#fn1" class="footnoteRef" id="fnref1"><sup>1</sup></a></p>
<p>It is our contention that <strong>U.S. state control over the core of the Internet's domain name system is <em>not</em> being removed</strong> by the transition that is currently underway.</p>
<h2 id="why-is-the-transition-happening-now">Why is the Transition Happening Now?</h2>
<p>Despite the U.S. government having given commitments in the past that were going to finish the IANA transition by "September 30, 2000", (the <a href="https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en">White Paper on Management of Internet Names and Addresses</a> states: "The U.S. Government would prefer that this transition be complete before the year 2000. To the extent that the new corporation is established and operationally stable, September 30, 2000 is intended to be, and remains, an 'outside' date.") and later by "fall of 2006",<a href="#fn2" class="footnoteRef" id="fnref2"><sup>2</sup></a> those turned out to be empty promises. However, this time, the transition seems to be going through, unless the U.S. Congress manages to halt it.</p>
<p>However, in order to answer the question of "why now?" fully, one has to look a bit at the past.</p>
<p>In 1998, through the <a href="https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en">White Paper on Management of Internet Names and Addresses</a> the U.S. government <a href="http://www.icannwatch.org/archive/mueller_icann_and_internet_governance.pdf">asserted it’s control over the root</a>, and asserted — some would say arrogated to itself — the power to put out contracts for both the IANA functions as well as the 'A' Root (i.e., the Root Zone Maintainer function that Network Solutions Inc. then performed, and continues to perform to date in its current avatar as Verisign). The IANA functions contract — a periodically renewable contract — was awarded to ICANN, a California-based non-profit corporation that was set up exclusively for this purpose, but which evolved around the existing IANA (to placate the Internet Society).</p>
<p>Meanwhile, of course, there were criticisms of ICANN from multiple foreign governments and civil society organizations. Further, despite it being a California-based non-profit on contract with the government, domestically within the U.S., there was pushback from constituencies that felt that more direct U.S. control of the DNS was important.</p>
<p>As Goldsmith and Wu summarize:</p>
<blockquote>
<p>"Milton Mueller and others have shown that ICANN’s spirit of “self-regulation” was an appealing label for a process that could be more accurately described as the U.S. government brokering a behind-the-scenes deal that best suited its policy preferences ... the United States wanted to ensure the stability of the Internet, to fend off the regulatory efforts of foreign governments and international organizations, and to maintain ultimate control. The easiest way to do that was to maintain formal control while turning over day-to-day control of the root to ICANN and the Internet Society, which had close ties to the regulation-shy American technology industry." [footnotes omitted]</p>
</blockquote>
<p>And that brings us to the first reason that the NTIA announced the transition in 2014, rather than earlier.</p>
<h3 id="icann-adjudged-mature-enough">ICANN Adjudged Mature Enough</h3>
<p>The NTIA now sees ICANN as being mature enough: the final transition was announced 16 years after ICANN's creation, and complaints about ICANN and its legitimacy had largely died down in the international arena in that while. Nowadays, governments across the world send their representatives to ICANN, thus legitimizing ICANN. States have largely been satisfied by participating in the Government Advisory Council, which, as its name suggests, only has advisory powers. Further, unlike in the early days, there is <a href="http://www.internetgovernance.org/2012/05/24/threat-analysis-of-itus-wcit-part-1-historical-context/">no serious push for states assuming control of ICANN</a>. Of course they grumble about the ICANN Board not following their advice, but no government, as far as I am aware, has walked out or refused to participate.</p>
<h3 id="laffaire-snowden">L'affaire Snowden</h3>
<p>Many within the United States, and some without, believe that the United States not only plays an exceptional role to play in the running of the Internet — by dint of historical development and dominance of American companies — but that <em>it ought to</em> have an exceptional role because it is the best country to exercise 'oversight' over 'the Internet' (often coming from <a href="http://www.wsj.com/articles/SB10001424052702303563304579447362610955656">clueless commentators</a>), and from dinosaurs of the Internet era, like <a href="http://www.circleid.com/posts/20140316_if_the_stakeholders_already_control_the_internet_netmundial_iana/">American IP lawyers</a> and <a href="http://www.lawfareblog.com/2014/03/who-controls-the-internet-address-book-icann-ntia-and-iana/">American 'homeland' security hawks</a>, Jones Day, who are ICANN's lawyers, and other <a href="http://homepages.wmich.edu/~cooneys/poems/cummings.nextto.html">jingoists</a> and those policymakers who are controlled by these narrow-minded interests.</p>
<p>The Snowden revelations were, in that way, a godsend for the NTIA, as it allowed them a fig-leaf of <a href="http://www.ft.com/cms/s/0/4529516c-c713-11e3-889e-00144feabdc0.html">international</a> <a href="https://www.rt.com/usa/nsa-fallout-relinquish-internet-oversight-002/">criticism</a> <a href="https://twitter.com/carolinegreer/status/454253411576598528">with which</a> to counter these domestic critics and carry on with a transition that they have been seeking to put into motion for a while. The Snowden revelations led Dilma Rousseff, President of Brazil, to state in September 2013, at the 68th U.N. General Assembly, that Brazil would "present proposals for the establishment of a <a href="https://gadebate.un.org/sites/default/files/gastatements/68/BR_en.pdf">civilian multilateral framework for the governance and use of the Internet</a>", and as <a href="https://icannwiki.com/Diego_Canabarro">Diego Canabarro</a> points out this catalysed the U.S. government and the technical community into taking action.</p>
<p>Given this context, a few months after the Snowden revelations, the so-called <a href="https://www.apnic.net/community/ecosystem/i*orgs">I* organizations</a> met — seemingly with the blessing of the U.S. government<a href="#fn3" class="footnoteRef" id="fnref3"><sup>3</sup></a> — in Montevideo, and put out a <a href="https://www.apnic.net/publications/news/2013/montevideo-statement-on-future-of-internet-cooperation">'Statement on the Future of Internet Governance'</a> that sought to link the Snowden revelations on pervasive surveillance with the need to urgently transition the IANA stewardship role away from the U.S. government. Of course, the signatories to that statement knew fully well, as did most of the readers of that statement, that there is no linkage between the Snowden revelations about pervasive surveillance and the operations of the DNS root, but still they, and others, linked them together. Specifically, the I* organizations called for "accelerating the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing."</p>
<p>One could posit the existence of two other contributing factors as well.</p>
<p>Given political realities in the United States, a transition of this sort is probably best done before an ultra-jingoistic President steps into office.</p>
<p>Lastly, the ten-yearly review of the World Summit on Information Society was currently underway. At the original WSIS (as seen from the civil society quoted above) the issue of US control over the root was a major issue of contention. At that point (and during where the 2006 date for globalization of ICANN was emphasized by the US government).</p>
<h2 id="why-jurisdiction-is-important">Why Jurisdiction is Important</h2>
<p>Jurisdiction has a great many aspects. <em>Inter alia</em>, these are:</p>
<ul>
<li>Legal sanctions applicable to changes in the root zone (for instance, what happens if a country under US sanctions requests a change to the root zone file?)</li>
<li>Law applicable to resolution of contractual disputes with registries, registrars, etc.</li>
<li>Law applicable to labour disputes.</li>
<li>Law applicable to competition / antitrust law that applies to ICANN policies and regulations.</li>
<li>Law applicable to disputes regarding ICANN decisions, such as allocation of gTLDs, or non-renewal of a contract.</li>
<li>Law applicable to consumer protection concerns.</li>
<li>Law applicable to financial transparency of the organization.</li>
<li>Law applicable to corporate condition of the organization, including membership rights.</li>
<li>Law applicable to data protection-related policies & regulations.</li>
<li>Law applicable to trademark and other speech-related policies & regulations.</li>
<li>Law applicable to legal sanctions imposed by a country against another.</li>
</ul>
<p>Some of these, but not all, depend on where bodies like ICANN [the policy-making body], the IANA functions operator [the proposed "Post-Transition IANA"], and the root zone maintainer are incorporated or maintain their primary office, while others depend on the location of the office [for instance, Turkish labour law applies for the ICANN office in Istanbul], while yet others depend on what's decided by ICANN in contracts (for instance, the resolution of contractual disputes with ICANN, filing of suits with regard to disputes over new generic TLDs, etc.).</p>
<p>However, an issue like sanctions, for instance, depends on where ICANN/PTI/RMZ are incorporated and maintain their primary office.</p>
<p>As <a href="http://content.netmundial.br/contribution/roadmap-for-globalizing-iana-four-principles-and-a-proposal-for-reform-a-submission-to-the-global-multistakeholder-meeting-on-the-future-of-internet-governance/96">Milton Mueller notes</a>, the current IANA contract "requires ICANN to be incorporated in, maintain a physical address in, and perform the IANA functions in the U.S. This makes IANA subject to U.S. law and provides America with greater political influence over ICANN."</p>
<p>He further notes that:</p>
<blockquote>
<p>While it is common to assert that the U.S. has never abused its authority and has always taken the role of a neutral steward, this is not quite true. During the controversy over the .xxx domain, the Bush administration caved in to domestic political pressure and threatened to block entry of the domain into the root if ICANN approved it (Declaration of the Independent Review Panel, 2010). It took five years, an independent review challenge and the threat of litigation from a businessman willing to spend millions to get the .xxx domain into the root.</p>
</blockquote>
<p>Thus it is clear that even if the NTIA's role in the IANA contract goes away, jurisdiction remains an important issue.</p>
<h2 id="u.s.-doublespeak-on-jurisdiction">U.S. Doublespeak on Jurisdiction</h2>
<p>In March 2014, when NTIA finally announced that they would hand over the reins to “the global multistakeholder community”. They’ve laid down two procedural condition: that it be developed by stakeholders across the global Internet community and have broad community consensus, and they have proposed 5 substantive conditions that any proposal must meet:</p>
<ul>
<li>Support and enhance the multistakeholder model;</li>
<li>Maintain the security, stability, and resiliency of the Internet DNS;</li>
<li>Meet the needs and expectation of the global customers and partners of the IANA services; and,</li>
<li>Maintain the openness of the Internet.</li>
<li>Must not replace the NTIA role with a solution that is government-led or an inter-governmental organization.</li>
</ul>
<p>In that announcement there is no explicit restriction on the jurisdiction of ICANN (whether it relate to its incorporation, the resolution of contractual disputes, resolution of labour disputes, antitrust/competition law, tort law, consumer protection law, privacy law, or speech law, and more, all of which impact ICANN and many, but not all, of which are predicated on the jurisdiction of ICANN’s incorporation), the jurisdiction(s) of the IANA Functions Operator(s) (i.e., which executive, court, or legislature’s orders would it need to obey), and the jurisdiction of the Root Zone Maintainer (i.e., which executive, court, or legislature’s orders would it need to obey).</p>
<p>However, Mr. Larry Strickling, the head of the NTIA, in his <a href="https://www.youtube.com/watch?v=8v-yWye5I0w&feature=youtu.be">testimony before the U.S. House Subcommittee on Communications and Technology</a>, made it clear that,</p>
<blockquote>
<p>“Frankly, if [shifting ICANN or IANA jurisdiction] were being proposed, I don't think that such a proposal would satisfy our criteria, specifically the one that requires that security and stability be maintained.”</p>
</blockquote>
<p>Possibly, that argument made sense in 1998, due to the significant concentration of DNS expertise in the United States. However, in 2015, that argument is hardly convincing, and is frankly laughable.<a href="#fn4" class="footnoteRef" id="fnref4"><sup>4</sup></a></p>
<p>Targetting that remark, in ICANN 54 at Dublin, we asked Mr. Strickling:</p>
<blockquote>
<p>"So as we understand it, the technical stability of the DNS doesn't necessarily depend on ICANN's jurisdiction being in the United States. So I wanted to ask would the US Congress support a multistakeholder and continuing in the event that it's shifting jurisdiction."</p>
</blockquote>
<p>Mr. Strickling's response was:</p>
<blockquote>
<p>"No. I think Congress has made it very clear and at every hearing they have extracted from Fadi a commitment that ICANN will remain incorporated in the United States. Now the jurisdictional question though, as I understand it having been raised from some other countries, is not so much jurisdiction in terms of where ICANN is located. It's much more jurisdiction over the resolution of disputes.</p>
<p>"And that I think is an open issue, and that's an appropriate one to be discussed. And it's one I think where ICANN has made some movement over time anyway.</p>
<p>"So I think you have to ... when people use the word jurisdiction, we need to be very precise about over what issues because where disputes are resolved and under what law they're resolved, those are separate questions from where the corporation may have a physical headquarters."</p>
</blockquote>
<p>As we have shown above, jurisdiction is not only about the jurisdiction of "resolution of disputes", but also, as Mueller reminds us, about the requirement that ICANN (and now, the PTI) be "incorporated in, maintain a physical address in, and perform the IANA functions in the U.S. This makes IANA subject to U.S. law and provides America with greater political influence over ICANN."</p>
<p>In essence, the U.S. government has essentially said that they would veto the transition if the jurisdiction of ICANN or PTI's incorporation were to move out of the U.S., and they can prevent that from happening <em>after</em> the transition, since as things stand ICANN and PTI will still come within the U.S. Congress's jurisdiction.</p>
<h2 id="why-has-the-icg-failed-to-consider-jurisdiction">Why Has the ICG Failed to Consider Jurisdiction?</h2>
<p>Will the ICG proposal or the proposed new ICANN by-laws reduce existing U.S. control? No, they won't. (In fact, as we will argue below, the proposed new ICANN by-laws make this problem even worse.) The proposal by the names community ("the CWG proposal") still has a requirement (in Annex S) that the Post-Transition IANA (PTI) be incorporated in the United States, and a similar suggestion hidden away as a footnote. Further, the proposed by-laws for ICANN include the requirement that PTI be a California corporation. There was no discussion specifically on this issue, nor any documented community agreement on the specific issue of jurisdiction of PTI's incorporation.</p>
<p>Why wasn't there greater discussion and consideration of this issue? Because of two reasons: First, there were many that argued that the transition would be vetoed by the U.S. government and the U.S. Congress if ICANN and PTI were not to remain in the U.S. Secondly, the ICANN-formed ICG saw the US government’s actions very narrowly, as though the government were acting in isolation, ignoring the rich dialogue and debate that’s gone on earlier about the transition since the incorporation of ICANN itself.</p>
<p>While it would be no one’s case that political considerations should be given greater weightage than technical considerations such as security, stability, and resilience of the domain name system, it is shocking that political considerations have been completely absent in the discussions in the number and protocol parameters communities, and have been extremely limited in the discussions in the names community. This is even more shocking considering that the main reason for this transition is, as has been argued above, political.</p>
<p>It can be also argued that the certain IANA functions such as Root Zone Management function have a considerable political implication. It is imperative that the political nature of the function is duly acknowledged and dealt with, in accordance with the wishes of the global community. In the current process the political aspects of the IANA function has been completely overlooked and sidelined. It is important to note that this transition has not been a necessitated by any technical considerations. It is primarily motivated by political and legal considerations. However, the questions that the ICG asked the customer communities to consider were solely technical. Indeed, the communities could have chosen to overlook that, but they did not choose to do so. For instance, while the IANA customer community proposals reflected on existing jurisdictional arrangements, they did not reflect on how the jurisdictional arrangements should be post-transition , while this is one of the questions at the heart of the entire transition. There were no discussions and decisions as to the jurisdiction of the Post-Transition IANA: the Accountability CCWG's lawyers, Sidley Austin, recommended that the PTI ought to be a California non-profit corporation, and this finds mention in a footnote without even having been debated by the "global multistakeholder community", and subsequently in the proposed new by-laws for ICANN.</p>
<h2 id="why-the-by-laws-make-things-worse-why-work-stream-2-cant-address-most-jurisdiction-issues">Why the By-Laws Make Things Worse & Why "Work Stream 2" Can't Address Most Jurisdiction Issues</h2>
<p>The by-laws could have chosen to simply stayed silent on the matter of what law PTI would be incorporated under, but instead the by-law make the requirement of PTI being a California non-profit public benefit corporation part of the <em>fundamental by-laws</em>, which are close to impossible to amend.</p>
<p>While "Work Stream 2" (the post-transition work related to improving ICANN's accountability) has jurisdiction as a topic of consideration, the scope of that must necessarily discount any consideration of shifting the jurisdiction of incorporation of ICANN, since all of the work done as part of CCWG Accountability's "Work Stream 1", which are now reflected in the proposed new by-laws, assume Californian jurisdiction (including the legal model of the "Empowered Community"). Is ICANN prepared to re-do all the work done in WS1 in WS2 as well? If the answer is yes, then the issue of jurisdiction can actually be addressed in WS2. If the answer is no — and realistically it is — then, the issue of jurisdiction can only be very partially addressed in WS2.</p>
<p>Keeping this in mind, we recommended specific changes in the by-laws, all of which were rejected by CCWG's lawyers.</p>
<h2 id="the-transition-plan-fails-the-netmundial-statement">The Transition Plan Fails the NETmundial Statement</h2>
<p>The <a href="http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf">NETmundial Multistakeholder Document</a>, which was an outcome of the NETmundial process, states:</p>
<blockquote>
<p>In the follow up to the recent and welcomed announcement of US Government with regard to its intent to transition the stewardship of IANA functions, the discussion about mechanisms for guaranteeing the transparency and accountability of those functions after the US Government role ends, has to take place through an open process with the participation of all stakeholders extending beyond the ICANN community</p>
<p>[...]</p>
<p>It is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that satisfy requirements from both internal stakeholders and the global community.</p>
<p>The active representation from all stakeholders in the ICANN structure from all regions is a key issue in the process of a successful globalization.</p>
</blockquote>
<p>As our past analysis has shown, the IANA transition process and the discussions on the mailing lists that shaped it <a href="http://editors.cis-india.org/internet-governance/blog/cis-india.org/internet-governance/blog/global-multistakeholder-community-neither-global-nor-multistakeholder">were neither global nor multistakeholder</a>. The DNS industry represented in ICANN is largely US-based. 3 in 5 registrars are from the United States of America, whereas less than 1% of ICANN-registered registrars are from Africa. Two-thirds of the Business Constituency in ICANN is from the USA. While ICANN-the-corporation has sought to become more global, the ICANN community has remained insular, and this will not change until the commercial interests involved in ICANN can become more diverse, reflecting the diversity of users of the Internet, and a TLD like .COM can be owned by a non-American corporation and the PTI can be a non-American entity.</p>
<h2 id="what-we-need-jurisdictional-resilience">What We Need: Jurisdictional Resilience</h2>
<p>It is no one's case that the United States is less fit than any other country as a base for ICANN, PTI, or the Root Zone Maintainer, or even as the headquarters for 9 of the world's 12 root zone operators (Verisign runs both the A and J root servers). However, just as having multiplicity of root servers is important for ensuring technical resilience of the DNS system (and this is shown in the uptake of Anycast by root server operators), it is equally important to have immunity of core DNS functioning from political pressures of the country or countries where core DNS infrastructure is legally situated and to ensure that we have diversity in terms of legal jurisdiction.</p>
<p>Towards this end, we at CIS have pushed for the concept of "jurisdictional resilience", encompassing three crucial points:</p>
<ul>
<li>Legal immunity for core technical operators of Internet functions (as opposed to policymaking venues) from legal sanctions or orders from the state in which they are legally situated.</li>
<li>Division of core Internet operators among multiple jurisdictions</li>
<li>Jurisdictional division of policymaking functions from technical implementation functions</li>
</ul>
<p>Of these, the most important is the limited legal immunity (akin to a greatly limited form of the immunity that UN organizations get from the laws of their host countries). This kind of immunity could be provided through a variety of different means: a host-country agreement; a law passed by the legislature; a U.N. General Assembly Resolution; a U.N.-backed treaty; and other such options exist. We are currently investigating which of these options would be the best option.</p>
<p>And apart from limited legal immunity, distribution of jurisdictional control is also valuable. As we noted in our submission to the ICG in September 2015:</p>
<blockquote>
<p>Following the above precepts would, for instance, mean that the entity that performs the role of the Root Zone Maintainer should not be situated in the same legal jurisdiction as the entity that functions as the policymaking venue. This would in turn mean that either the Root Zone Maintainer function be taken up Netnod (Sweden-headquartered) or the WIDE Project (Japan-headquartered) [or RIPE-NCC, headquartered in the Netherlands], or that if the IANA Functions Operator(s) is to be merged with the RZM, then the IFO be relocated to a jurisdiction other than those of ISOC and ICANN. This, as has been stated earlier, has been a demand of the Civil Society Internet Governance Caucus. Further, it would also mean that root zone servers operators be spread across multiple jurisdictions (which the creation of mirror servers in multiple jurisdictions will not address).</p>
</blockquote>
<p>However, the issue of jurisdiction seems to be dead-on-arrival, having been killed by the United States government.</p>
<p>Unfortunately, despite the primary motivation for demands for the IANA transition being those of removing the power the U.S. government exercises over the core of the Internet's operations in the form of the DNS, what has ended up happening through the IANA transition is that these powers have not only not been removed, but in some ways they have been entrenched further! While earlier, the U.S. had to specify that the IANA functions operator had to be located in the U.S., now ICANN's by-laws themselves will state that the post-transition IANA will be a California corporation. Notably, while the Montevideo Declaration speaks of "globalization" of ICANN and of the IANA functions, as does the NETmundial statement, the NTIA announcement on their acceptance of the transition proposals speaks of "privatization" of ICANN, and not "globalization".</p>
<p>All in all, the "independence" that IANA is gaining from the U.S. is akin to the "independence" that Brazil gained from Portugal in 1822. Dom Pedro of Brazil was then ruling Brazil as the Prince Regent since his father Dom João VI, the King of United Kingdom of Portugal, Brazil and the Algarves had returned to Portugal. In 1822, Brazil declared independence from Portugal (which was formally recognized through a treaty in 1825). Even after this "independence", Dom Pedro continued to rule Portugal just as he had before indepedence, and Dom João VI was provided the title of "Emperor of Brazil", aside from being King of the United Kingdom of Portugal and the Algarves. The "indepedence" didn't make a whit of a difference to the self-sufficiency of Brazil: Portugal continued to be its largest trading partner. The "independence" didn't change anything for the nearly 1 million slaves in Brazil, or to the lot of the indigenous peoples of Brazil, none of whom were recognized as "free". It had very little consequence not just in terms of ground conditions of day-to-day living, but even in political terms.</p>
<p>Such is the case with the IANA Transition: U.S. power over the core functioning of the Domain Name System do not stand diminished after the transition, and they can even arguably be said to have become even more entrenched. Meet the new boss: same as the old boss.</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1"><p>It is an allied but logically distinct issue that U.S. businesses — registries and registrars — dominate the global DNS industry, and as a result hold the reins at ICANN.<a href="#fnref1">↩</a></p></li>
<li id="fn2"><p>As Goldsmith & Wu note in their book <em>Who Controls the Internet</em>: "Back in 1998 the U.S. Department of Commerce promised to relinquish root authority by the fall of 2006, but in June 2005, the United States reversed course. “The United States Government intends to preserve the security and stability of the Internet’s Domain Name and Addressing System (DNS),” announced Michael D. Gallagher, a Department of Commerce official. “The United States” he announced, will “maintain its historic role in authorizing changes or modifications to the authoritative root zone file.”<a href="#fnref2">↩</a></p></li>
<li id="fn3"><p>Mr. Fadi Chehadé revealed in an interaction with Indian participants at ICANN 54 that he had a meeting "at the White House" about the U.S. plans for transition of the IANA contract before he spoke about that when <a href="http://articles.economictimes.indiatimes.com/2013-10-22/news/43288531_1_icann-internet-corporation-us-centric-internet">he visited India in October 2013</a> making the timing of his White House visit around the time of the Montevideo Statement.<a href="#fnref3">↩</a></p></li>
<li id="fn4"><p>As an example, <a href="https://www.nlnetlabs.nl/projects/nsd/">NSD</a>, software that is used on multiple root servers, is funded by a Dutch foundation and a Dutch corporation, and written mostly by European coders.<a href="#fnref4">↩</a></p></li>
</ol>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann'>http://editors.cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann</a>
</p>
No publisherpraneshIANAInternet GovernanceFeaturedICANNIANA Transition2016-06-29T07:51:05ZBlog EntrySubmission by the Centre for Internet and Society on Draft New ICANN By-laws
http://editors.cis-india.org/internet-governance/blog/comments-on-the-draft-new-icann-bylaws
<b>The Centre for Internet & Society sent its comments on the Draft New ICANN Bylaws. The submission was prepared by Pranesh Prakash, Vidushi Marda, Udbhav Tiwari and Swati Muthukumar. Special thanks to Sunil Abraham for his input and feedback.
</b>
<p style="text-align: justify; ">We at the Centre for Internet and Society are grateful for the opportunity to comment on the draft new ICANN by-laws. Before we comment on specific aspects of the Draft by-laws, we would like to make a few general observations:</p>
<p style="text-align: justify; ">Broadly, there are significant differences between the final form of the by-laws and that which has been recommended by the participants in the IANA transition process through the ICG and the CCWG. They have been shown to be unnecessarily complicated, lopsided, and skewed towards U.S.-based businesses in their past form, which continues to reflect in the current form of the draft by-laws.</p>
<p style="text-align: justify; ">The draft by-laws are overwrought, but some of that is not the fault of the by-laws, but of the CCWG process itself. Instead of producing a broad constitutional document for ICANN, the by-laws read like the worst of governmental regulations that go into unnecessary minutiae and create more problems than they solve. Things that ought not to be part of fundamental by-laws — such as the incorporating jurisdiction of PTI, on which no substantive agreement emerged in the ICG — have been included as such.</p>
<p style="text-align: justify; ">Simplicity has been seen as a sin and has made participation in this complicated endeavour an even more difficult proposition for those who don’t choose to participate in the dozens of calls held every month. On specific substantive issues, we have the following comments:</p>
<h3 style="text-align: justify; ">Jurisdiction of ICANN’s Principal Office</h3>
<p style="text-align: justify; ">Maintaining by-law Article XVIII, which states that ICANN has its principal office in Los Angeles, California, USA, these Draft by-laws make an assumption that ICANN’s jurisdiction will not change post transition, even though the jurisdiction of ICANN and its subsidiary bodies is one of the key aspects of post transition discussion to be carried out in Work Stream 2 (WS2). Despite repeated calls to establish ICANN as an international community based organisation (such as the International Red Cross or International Monetary Fund), the question of ICANN's future jurisdiction was deferred to WS2 of the CCWG-Accountability process. All of the new proposed by-laws have been drafted with certainty upon ICANN's jurisdiction remaining in California. Examples of this include the various references to the California Civil Code in the by-laws and repeated references to entities and structures (such as public benefit corporations) in the fundamental by-laws of the ICANN that can only be found in California.</p>
<p style="text-align: justify; ">This would make redundant any discussion in WS2 regarding jurisdiction, since they cannot be implemented without upending the decisions relating to accountability structures made in WS1, and embedded in the by-laws.</p>
<p style="text-align: justify; ">CIS suggests an provision expressly be inserted in the by-laws to allow changes to the by-laws in WS2 insofar as matters relating to jurisdiction and other WS2 issues are concerned, to make it clear that there is a shared understanding that WS2 decisions on jurisdiction are not meant to be redundant.</p>
<h3 style="text-align: justify; ">Jurisdiction of the Post-Transition IANA Authority (PTI)</h3>
<p style="text-align: justify; ">The structure of the by-laws and the nature of the PTI in Article 16 make its Californian jurisdiction integral to the very organisation as a whole and control all its operations, rights and obligations. This is so despite this issue not having been included in the CWG report (except for footnote 59 in the CWG report, and as a requirement proposed by ICANN’s lawyers, to be negotiated with PTI’s lawyers, in Annex S of the CWG report). The U.S. government’s requirement that the IANA Functions Operator be a U.S.-based body is a requirement that has historically been a cause for concern amongst civil society and governments. Keeping this requirement in the form of a fundamental by-law is antithetical to the very idea of internationalizing ICANN, and is not something that can be addressed in Work Stream 2.</p>
<p style="text-align: justify; ">CIS expressed its disagreement with the inclusion of the U.S-jurisdiction requirement in Annex S in its comments to the ICG. Nothing in the main text of the CWG or ICG recommendations actually necessitate Californian jurisdiction for the PTI. Thus, clearly the draft by-laws include this as a fundamental by-law despite it not having achieved any form of documented consensus in any prior process. This being a fundamental by-law would make shifting the PTI’s registered and principal office almost impossible once the by-laws are passed.</p>
<p style="text-align: justify; ">No reasoning or discussion has been provided to justify the structure, location and legal nature of the PTI. The fact that the revenue structure, by-laws and other details have not even been hinted at in the current document, indicate that the true rights and obligations of PTI have been left at the sole discretion of the ICANN while simultaneously granting it fundamental by-law protection. This is not only deeply problematic on front of delegation of excessive responsibility for a key ICANN function without due oversight but also leads to situation where the community is agreeing to be bound to a body whose fundamental details have not even been created yet, and yet is a fundamental by-law.</p>
<p style="text-align: justify; ">CIS would therefore suggest that the PTI related clauses in the by-laws be solely those on which existing global Internet community consensus can be shown, and the PTI’s jurisdiction is not something on which such consensus can be shown to exist. Therefore the by-laws should be rewritten to make them agnostic to PTI’s jurisdiction. Further, CIS suggests that the law firm appointed for PTI be non-American, since U.S.-based law firms capable law firms in Brazil, France, and India.</p>
<p style="text-align: justify; ">We would also like to note that we have previously proposed that PTI’s registered office and ICANN’s registered office be in different jurisdictions to increase jurisdictional resilience against governmental and court-based actions.</p>
<h3 style="text-align: justify; ">Grandfathering Agreements Clause</h3>
<p style="text-align: justify; ">A fair amount of discussion has taken place both in the CCWG mailing list about Section 1.1 (d)(ii), which concerns the inclusion of certain agreements into the scope of protection granted to ICANN from its Mission and Objective statement goals. CIS largely agrees with the positions taken by the IAB and CCWG in their comments of demanding the removal of parts B, C, D E and F of Section 1.1(d)(ii) as all of these are agreements that were not included in the scope of the CCWG Proposal and a fair few of these agreements (such as the PTI agreement) have not even been created yet. This leads to practical and legal issues for the ICANN as well as the community as it restricts possible accountability and transparency measures that may be taken in the future.<br />CIS as its suggestion therefore agrees with the IAB and CCWG in this regard and supports the request by them that demand by these grandfathering provisions be removed.</p>
<h3 style="text-align: justify; ">Inspection Rights</h3>
<p style="text-align: justify; ">Section 22.7 severely limits the transparency of ICANN’s functioning, and we believe it should be amended.</p>
<p style="text-align: justify; ">(a) It limits Inspection Requests to Decisional Participants and does not allow for any other interested party to make a request for inspection. While the argument has been made that Californian law requires inspection rights for decisional participants, neither the law nor CCWG’s recommendations require restricting the inspection rights to decisional participants. CIS’s suggestion is to allow for any person in the public to make a request for examination, but to have to declare the nature of the public interest behind requests for non-decisional participants, so that an undue number of requests are not made for the purpose of impairing the operations of the organisation.</p>
<p style="text-align: justify; ">(b) The unclear but extremely limited definition of ‘permitted scope’, which does not allow one to question any ‘small or isolated aspect’ of ICANN’s functioning, where there is no explicit definition of what constitutes the scope of matters relevant to operation of ICANN as a whole, leaving a loophole for potential exploitation. CIS suggests the removal of this statement and to allow only for limitations listed in Section 22.7 (b) for Inspection Requests.</p>
<p style="text-align: justify; ">(3) There is no hard deadline provided for the information to be made available to the querying body, thus allowing for inordinate delays on the part of the ICANN, which is open to abuse. CIS suggests the removal of the clause ‘or as soon as reasonably practicable thereafter’ in this section.</p>
<p style="text-align: justify; ">(4) The need for insisting that the material be used only for restricted purposes. CIS suggests that as a step towards ICANN’s transparency, it is essential that they allow the use of the information for any reason deemed necessary by the person demanding inspection. There is no clear reason to require restriction to EC proceedings for non-confidential material. This requirement should be removed.</p>
<h3 style="text-align: justify; ">Work Stream 2 Topics</h3>
<p style="text-align: justify; ">Section 27.2, which covers necessary topics for WS2, currently does not include key aspects such as PTI documents, jurisdictional issues, etc. In this light, we suggest that they be included and a clause be inserted to indicate that this list of topics is indicative and the CCWG can expand the scope of items to be worked on in WS2 as well as make changes to work completed in WS1 (such as these by-laws) to meet WS2 needs as well.</p>
<h3 style="text-align: justify; ">FOI-HR</h3>
<p style="text-align: justify; ">Section 27.3 (a) requires the FOI-HR to be approved by "(ii) each of the CCWG-Accountability’s chartering organizations..” which is inconsistent with the CCWG proposal that forms the basis for these by-laws. The requirement of formal approval from every Chartering Organisation in the current draft is inconsistent with Annex 6 of the CCWG proposal, that has no such requirement.</p>
<p style="text-align: justify; ">CIS strongly advocates for a change in the bylaw text to align with the intent of the CCWG Accountability report, and to reflect that the process of developing the FOI-HR shall follow the same procedure as Work Stream 1.</p>
<h3 style="text-align: justify; ">Contracts with ICANN</h3>
<p style="text-align: justify; ">Section 27.5 currently states that “Notwithstanding the adoption or effectiveness of the New by-laws, all agreements, including employment and consulting agreements, entered by ICANN shall continue in effect according to their terms.”</p>
<p style="text-align: justify; ">As the section currently stands, there is a possibility that prior to the creation of by-laws, agreements that may be in contravention of the by-laws may be brought forth intentionally before the commencement of the operation of ICANN’s Mission statement in the said by-laws. The clause may be updated as follows to avoid this —</p>
<p style="text-align: justify; ">“Notwithstanding the adoption or effectiveness of the New by-laws, all agreements, including employment and consulting agreements, entered by ICANN shall continue in effect according to their terms, provided that they are in accordance with ICANN’s Mission Statement.”</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/comments-on-the-draft-new-icann-bylaws'>http://editors.cis-india.org/internet-governance/blog/comments-on-the-draft-new-icann-bylaws</a>
</p>
No publishervidushiICANNInternet Governance2016-05-31T02:49:45ZBlog EntryWoman Alleges Harassment at Major International Conference
http://editors.cis-india.org/internet-governance/news/bangalore-mirror-march-30-2016-kavita-patil-woman-alleges-harassment-at-major-international-conference
<b>A prospective lawyer's name tag was flipped, and she was asked rude questions by a CEO at a conference, where, ironically enough, she was invited to devise sexual harassment policies.
</b>
<p style="text-align: justify; ">The article by Kavita Patil was <a class="external-link" href="http://www.bangaloremirror.com/bangalore/others/Woman-alleges-harassment-at-major-international-conference/articleshow/51605662.cms">published in Bangalore Mirror</a> on March 30, 2016.</p>
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<p style="text-align: justify; ">Padmini Baruah, 22, a National Law School of India University (NLSIU) student representing Centre for Internet and Society (CIS), at the ICANN55 (Internet Corporation for Assigned Names and Numbers) held at Marrakech, alleged that she was sexually harassed by Khaled Fattal, the chairman and CEO of The Multilingual Internet Group.</p>
<p style="text-align: justify; ">On March 2, Baruah had reached out to the conference ombudsman and expressed her concerns about the lack of a specific sexual harassment policy. She was directed to the ICANN55's Standards of Behavior, who invited her for a discussion at the conference in Marrakech.</p>
<p style="text-align: justify; ">About three hours before her meeting with the ombudsman on March 6, she had a shock. "I was, unfortunately, subjected to sexual harassment in the nature of verbal remarks and infringement of my personal space by the perpetrator in question, a man I eventually came to know was called Khaled Fattal," she recalled. "Fattal approached me, pulled at my name tag, examined it and dropped it. A little later, he lifted my name tag and flipped it back and forth asking me, "Where are you from?"</p>
<p style="text-align: justify; ">He then leaned in, lecherously looked at me and asked, "Do you know how to make a cheese sandwich?" I was taken aback and responded angrily saying, "Yes, that is why I came here, to make you cheese sandwiches." He went on to throw another lecherous look my way and said, "Well, I love veg sandwiches."</p>
<p style="text-align: justify; ">Sunil Abraham, executive director of the CIS, said, "ICANN doesn't have a special cell where complaints can be raised but they have an ombudsman. The ombudsman is investigating the case and is in touch with both Baruah and also the perpetrator." He said after she raised the sexual harassment complaint, he received many mails from women who had faced harassment at the event but never made an attempt to raise their voice. "Through CIS we have issued a public statement of support for Baruah and we are waiting for the result of the investigation," he said.</p>
<p style="text-align: justify; ">Fattal and the ombudsman were not available for comment despite repeated attempts made by BM to get a response. Baruah, meanwhile, was informed by the ombudsman that her's was the first harassment case reported in the history of ICANN.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/bangalore-mirror-march-30-2016-kavita-patil-woman-alleges-harassment-at-major-international-conference'>http://editors.cis-india.org/internet-governance/news/bangalore-mirror-march-30-2016-kavita-patil-woman-alleges-harassment-at-major-international-conference</a>
</p>
No publisherpraskrishnaICANNInternet GovernanceSexual Harassment2016-03-30T17:06:10ZNews ItemICANN 55
http://editors.cis-india.org/internet-governance/news/icann-55
<b>Internet Corporation for Assigned Names and Numbers (ICANN) held its 55th meeting in Marrakech, Morocco from March 5 to 10, 2016. Padmini Baruah and Vidushi Marda attended the event organized by Moroccan Ministry of Foreign Affairs and Cooperation, Consular and Social Affairs. </b>
<p style="text-align: justify; ">The Centre for Internet & Society's (CIS) work during this meeting revolved mainly around ICANN's accountability (DIDP and Reconsideration requests), transparency, its commitment to human rights, diversity, and questions surrounding the IANA transition. CIS research was circulated via a submission booklet to different people that we met through the course of the conference. A session-wise account of our work at ICANN55 can be <a href="http://editors.cis-india.org/internet-governance/ICANN55WorkSummary.pdf" class="internal-link">accessed here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/icann-55'>http://editors.cis-india.org/internet-governance/news/icann-55</a>
</p>
No publisherpraskrishnaICANNInternet Governance2016-03-30T14:41:34ZNews ItemICANN Sexual Harassment Case Highlights Lack of Procedure at Global Internet Body
http://editors.cis-india.org/internet-governance/news/the-wire-march-24-2016-icann-sexual-harassment-case-highlights-lack-of-procedure-at-global-internet-body
<b>Alleged perpetrator files counter-complaint with ombudsman’s office after being publicly identified.</b>
<p>The article was <a class="external-link" href="http://thewire.in/2016/03/24/icann-sexual-harassment-case-highlights-lack-of-procedure-at-global-internet-body-25728/">published in the Wire</a> on March 24, 2016.</p>
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<p style="text-align: justify; ">A female researcher associated with the Bangalore-based Centre for Internet and Society has alleged that she was sexually harassed at an ICANN (Internet Corporation for Assigned Names and Numbers) public meeting held in Morocco earlier this month, in an incident that highlights a lack of established procedure at the global body responsible for maintaining the technical backbone of the Internet.</p>
<p style="text-align: justify; ">According to the woman, who is currently a law student but was representing CIS at the meeting, she was sexually harassed by a participant from the private sector constituency on March 6th at a working session.</p>
<p style="text-align: justify; ">“I felt like my space and safety as a young woman in the ICANN community was at stake,” she said.</p>
<p style="text-align: justify; ">ICANN-organised events currently do not have a formal redressal system for these type of complaints nor does it have a specific anti-sexual harassment committee to which community members can file an official complaint.</p>
<p style="text-align: justify; ">The CIS representative, therefore, has taken up her case with ICANN’s ombudsman office, an office that does not have an explicit mandate to deal with incidents of sexual harassment.</p>
<p style="text-align: justify; ">“I currently am unclear as to the exact status of my complaint. The ombudsman office does not have a clear sexual harassment procedure, it has only a standards of behaviour. When I first went to them, they told me nobody has officially complained of sexual harassment since 1998,” she told <i>The Wire</i>.</p>
<p style="text-align: justify; ">“I understand the evidential burden that needs to be fulfilled for this [allegation] to be proven. I know it’s difficult to prove this. I just want an enquiry conducted properly and impartially.”</p>
<p style="text-align: justify; ">The Centre for Internet and Society released a sharp statement on Monday, pointing out that since the woman was “given no immediate remedy or formal recourse”, she had no choice but to make “the incident publicly known in the interim.”</p>
<p style="text-align: justify; ">CIS Executive Director Sunil Abraham pointed out that while the ombudsman office has been in touch with the organisation’s representative, “this administrative process is simply inadequate for rights-violation”.</p>
<p style="text-align: justify; ">To that end, CIS has called upon ICANN to “institute a formal redressal system with regard to sexual harassment and institute an anti-sexual harassment committee that is neutral and approachable”.</p>
<p style="text-align: justify; ">“Merely having an ombudsman who is a white male, however well intentioned, is inadequate and completely unhelpful to the complainant. The present situation is one where the ombudsman has no effective power and only advises the board ,” the CIS’s statement reads.</p>
<p style="text-align: justify; "><strong>ICANN perspective</strong></p>
<p style="text-align: justify; ">When asked for a comment, ICANN media representatives pointed <em>The Wire</em> to the written transcript of a public session in which this particular issue of sexual harassment was raised. In that meeting, ICANN board member Markus Kummer specifically condemns “improper conduct of any kind such as harassment” while calling for zero tolerance on such issues within the larger ICANN community.</p>
<p style="text-align: justify; ">On the issue of whether ICANN could adopt a broader policy on sexual harassment, Kummer acknowledges that while the organisation’s expected standards of behaviour “could be a bit more specific as regards harassment”, the standards are applicable to “staff and board members and we have to undergo training”.</p>
<p style="text-align: justify; ">“Now, we could also make this also available to the community but the board thought it might not be the appropriate way to go about and impose something on the community. It might be more appropriate for the community to come up with these standards…Let me once again assure the community that the board is fully cognizant of the importance of this issue and supports the community in developing standards that may be more explicit in regard of these issues,” Kummer is quoted as saying in the transcript.</p>
<p style="text-align: justify; "><strong>Complaint, Counter-Complaint</strong></p>
<p style="text-align: justify; ">The incident, however, took a different turn on Tuesday after the ICANN ombudsman wrote to the CIS representative informing her that the investigation had become “very difficult” because she had identified and named the alleged perpetrator in a public social media posting.</p>
<p style="text-align: justify; ">“By naming [the alleged perpetrator] before the process was completed, this has meant that the confidentiality of my office has been compromised and his privacy has been compromised. Leaving aside the issue of whether he actually made the comments and behaved as you describe [sic], he is entitled to a fair and impartial investigation,” the ombudsman office’s letter says.</p>
<p style="text-align: justify; ">The alleged perpetrator now, according to the letter, has filed a counter-complaint with the ombudsman and has asked the office to undertake an investigation into the female student’s actions in this regard.</p>
<p style="text-align: justify; ">“I remind you that his [the perpetrator] initial response on the initial discussion was that he could not recall making the remark. So I sought your comments. I would have liked to take your comments back to him and had some form of conversation. This may still be possible but the force of your complaint is diluted by the problem of procedural fairness by the premature publication of his name,” the letter adds.</p>
<p style="text-align: justify; "><strong>Cleaning up</strong></p>
<p style="text-align: justify; ">While the CIS representative’s complaint may be the first officially recorded incident at an ICANN meeting, sexual harassment and inappropriate gender bias at numerous technical conferences across the world (ICANN or not) has been a <a href="http://geekfeminism.wikia.com/wiki/Timeline_of_incidents" target="_blank"><span>well-documented phenomenon</span></a>.</p>
<p style="text-align: justify; ">In 2012, ICANN ombudsman Chris LaHette was forced to step in after a complaint was lodged regarding the <a href="http://domainincite.com/8146-hot-girls-land-cz-nic-in-hot-water" target="_blank"><span>insensitive advertising and promotion </span></a>surrounding the ICANN 44 meeting in Prague.</p>
<p style="text-align: justify; ">While ICANN’s “expected standards of behaviour” – basically a code of conduct – explicitly states that all “members of the ICANN community be treated equally irrespective of nationality or gender..”, there is no official policy that states what aggrieved parties should do after an incident occurs.</p>
<p style="text-align: justify; ">Such a policy must be created, CIS points out, and must be “displayed on the ICANN website, at the venue of meetings, and made available in delegate kits”.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/the-wire-march-24-2016-icann-sexual-harassment-case-highlights-lack-of-procedure-at-global-internet-body'>http://editors.cis-india.org/internet-governance/news/the-wire-march-24-2016-icann-sexual-harassment-case-highlights-lack-of-procedure-at-global-internet-body</a>
</p>
No publisherpraskrishnaICANNInternet GovernanceSexual Harassment2016-04-01T15:42:49ZNews ItemSexual Harassment at ICANN
http://editors.cis-india.org/internet-governance/blog/sexual-harassment-at-icann
<b>Padmini Baruah represented the Centre for Internet & Society at ICANN in the month of March 2016. In a submission to ICANN she is calling upon the ICANN board for implementing a system for investigating cases related to sexual harassments. </b>
<p style="text-align: justify; ">On the 6th of March, 2016, Sunday, at about 10 am in the gNSO working session being conducted at the room Diamant, I was sexually harassed by someone from the private sector constituency named Khaled Fattal. He approached me, pulled at my name tag, and passed inappropriate remarks. I felt like my space and safety as a young woman in the ICANN community was at stake.</p>
<p style="text-align: justify; ">I had incidentally been in discussion with the ICANN Ombudsman on developing a clear and coherent sexual harassment policy and procedure for the specific purposes of ICANN’s public meetings. Needless to say, this incident pushed me to take forward what had hitherto been a mere academic interest with increased vigour. I was amazed, firstly that the office of the ombudsman only had two white male members manning it. I was initially inhibited by that very fact, but made two points before them:</p>
<ol>
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<div style="text-align: justify; ">With respect to action on my individual case.</div>
</li>
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<div style="text-align: justify; ">With respect to the development of policy in general.</div>
</li>
</ol>
<p style="text-align: justify; ">I would like to put on record that the ombudsman office was extremely sympathetic and gave me a thorough hearing. They assured me that my individual complaint would be recorded, and sought to discuss the possibility of me raising a public statement with respect to policy, as they believed that the Board would be likely to take this suggestion up from a member of the community. I was also informed, astoundingly, <strong>that this was the first harassment case reported in the history of ICANN</strong>.</p>
<p style="text-align: justify; ">I then, as a newcomer to the community, ran this idea of making a public statement by no means an easy task at all, given the attached stigma that comes with being branded a victim of a sexual crime by certain senior people within ICANN who had assured me that they would take my side in this regard. To my dismay, there were two strong stands of victim blaming and intimidation that I faced I was told, in some cases by extremely senior and well respected, prominent women in the ICANN community, that raising this issue up would demean my credibility, status and legitimacy in ICANN, and that my work would lose importance, and I would “...forever be branded as THAT woman.” My incident was also trivialised in offhand casual remarks such as “This happened because you are so pretty”, “Oh you filed a complaint, not against me I hope, ha ha” which all came from people who are very high up in the ICANN heirarchy. I was also asked if I was looking for money out of this. <a href="http://editors.cis-india.org/internet-governance/blog/sexual-harassment.pdf" class="internal-link">Click to read the full statement made to ICANN here</a>.</p>
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</ul>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/sexual-harassment-at-icann'>http://editors.cis-india.org/internet-governance/blog/sexual-harassment-at-icann</a>
</p>
No publisherpadminiSexual HarassmentICANNInternet GovernancePrivacy2016-04-06T14:40:55ZBlog Entry