December 2015 - Accountability-Cross-Community

Personal Responses to Draft Summary of ALAC Issues on Mission (Recommendation 5)
by Burr, Becky Dec. 19, 2015

Dec. 19, 2015

According to the Draft Issues document circulated by Alan Greenberg, “ALAC has a grave concern that the wording used to restrict ICANN’s mission may have inadvertent results which severely impact its ability to carry out its intended mission.” That’s a pretty serious charge and I thought it would make sense to begin a substantive discussion of the ALAC points. Here is my attempt to start that conversation. In the hope of moving this issue forward quickly, I am stepping out of my role as rapporteur here and expressing my personal views. I apologize in advance for the length of this post, but wanted to respond as fully as possible to the ALAC Draft. 1. According to the Draft Summary, the notes to drafters incorrectly imply that ICANN’s Mission is limited to the “picket fence.” I believe this is inaccurate. ICANN’s Mission is specifically described as coordinating the development and implementation of bottom-up policies for which uniform coordinate resolution is reasonably necessary to facilitate the openness,, interoperability, and/or stability [of the DNS]. The note to drafters says that RAA Spec 4 and RA Spec 1 “are intended and understood to be within the scope of ICANN’s Mission.” 2. According to the Draft Summary, the ALAC wants a legal opinion that provides assurance that the “many areas of contracts” outside the so-called “picket fence,” established by negotiation, or other than through a PDP “may be renewed without change in the areas in question.” This concern also extends to new gTLD operators who have not signed contracts yet. I think we need to break this question down a bit. · First, recall that the Mission specifically empowers ICANN to “implement” policies. Also recall that the text we have provided states “ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.” Most of the provisions of the RA and RAA of concern should be covered by these authorities, IMHO. · Second, I acknowledge that there could be some new gTLD applicant-provided PICs and new gTLD applicant-provided operating rules that fall outside of ICANN’s Mission Statement. For example, suppose the applicant for .singlemaltscotch specified in its application (which is, in turn, incorporated into its Registry Agreement) that all registrants in the domain must be 21 years old. That requirement probably is not strictly necessary to facilitate the openness, interoperability, resilience, security and/or stability [of the DNS]. While I don’t think that ICANN has the authority to demand that the registry operator adopt such a policy, I have no problem whatsoever with ICANN holding the registrant to that policy if it was offered as part of the application. (Others may well disagree with me.) · Third, rather than speaking in generalities, could we talk about some specific provisions that arguably fall outside ICANN’s Mission and its implementation authority? I’m asking both sides for contributions on this point. · Finally – the request for a “legal opinion.” I will repeat what I’ve already said, these kind of open-ended questions produce very expensive, very unsatisfying legal opinions. Rather than chase this option, once we agree on the problem statement, let’s ask the lawyers if there is language that could be added to reinforce the likelihood that any challenge will be resolved in the manner we collectively anticipate. 3. According to the ALAC Draft Summary “anything which would allow an IRP to invalidate the current contractual terms is not acceptable.” I don’t think that there is a risk of invalidating the current contractual terms – and the language that we have discussed as an additional note to drafters would reinforce that (This means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language.) I don’t have a particular problem extending that to existing applicants who have yet to sign registry agreements, though others might. But seriously, is ALAC asking for a guarantee that certain provisions cannot be challenged? That is not a reasonable ask IMHO. That’s because it is always the case that ICANN could choose to enforce a provision of an existing agreement in a manner that is a frank violation of the Mission. I’ve previously provided several examples in the context of 3.18 of the RAA, which I believe is – on its face – consistent with Mission, but which could be enforced in a manner that is not. 4. ALAC continues to object to the removal of the “where feasible and appropriate” caveat to the Core Values regarding reliance on market mechanisms to promote and sustain a competitive environment. ALAC takes exception with my point that “ICANN does not possess the requisite skill or authority to intervene in the competitive market,” citing the RSEP provisions regarding concerns about significant competition issues. I think the example completely supports my point here. In the RSEP, if ICANN has competition concerns, it has the authority to “refer the matter to the appropriate competition authority.” From that point it is entirely up to the appropriate competition authority to exercise its sovereign authority with respect to antitrust law. If the concern is that somehow the omission of the “where feasible and appropriate” language would prevent ICANN from making such a referral (which I don’t believe is the case), then I am happy to clarify. But taking competition law into its own hands is, IMHO, a very clear example of the kind of regulatory authority that ICANN should not have. 5. ALAC objects to the Commitment to “preserve and enhance the neutral and judgment free operation of the DNS,” pointing out that the NTIA requirement is limited to the “neutral and judgment free administration of the technical DNS and IANA functions.” Good point, I am ok with that change. 6. The ALAC believes that the AoC commitment to “consumer trust” should be in the ICANN Commitments and Core Values rather than in the AoC reviews provisions of the Bylaws. Section 3 of the AoC describes what the “document” (the AoC) accomplishes: it affirms key commitments by DOC and ICANN, including commitments “to promote competition, consumer trust, and consumer choice in the DNS marketplace.” The context for promoting consumer trust is found exclusively in Section 9.3, which describes the reviews that must be undertaken in connection with the expansion of the top level domain space. This issue was debated extensively within the CCWG. A general commitment to promoting consumer trust threatens massive scope creep IMHO. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

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Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
by David Post Dec. 18, 2015

Dec. 18, 2015

oops ... I meant rootserver operators, not RiRs ... "DNS on the Brain" David ******************************************************************************* That's correct: "If I have a contract to clean the FBI building, and the contract is terminated, I will be in big trouble if I show up and pull out my cleaning supplies and try to go to work." But that's because without the contract, you're a trespasser when you go into the FBI building. If you have a contract to clean Rock Creek Park, and the contract is terminated, there's no problem if you show up afterwards and clean the park - you're allowed to be there, even without the contract, and there's no law against cleaning up parks on your own. If you have a government contract to conduct research on cancer formation in mice, you can continue to do the research after the contract is terminated, because there's no law against doing research on cancer formation in mice. The IANA Contract is indeed, as you put it, an "odd bird." IMHO, it is more like the parks cleaning contract than the FBI building cleaning contract - ICANN )(or anyone else) would not be breaking any law (or "trespassing") if it continued to do everything it does today, even after the termination of the contract. Phil Corwin wrote: >PC: If the IANA contract expired tonight ICANN >could keep doing everything it is doing today >exceept recommend changes to the root zone. ... Even that, I would argue, is something ICANN could do perfectly lawfully even after contract termination - the same way Virtualaw LLC, or the University of Minnesota, or David Post can perfectly lawfully "recommend changes to the root zone." After contract termination, the root zone operator is not obligated to do anything ICANN recommends - but that doesn't speak to whether ICANN can legally continue to do what it is currently doing. If, after termination, ICANN recommended a change to the Root zone and the RIR's implemented that change in the root zone files under their control, would there have been any violation of any law? I would say "No." David At 02:43 PM 12/17/2015, Greg Shatan wrote: >On the other hand, if you have a government >contract to operate a resource or provide >particular services, you can't do so after the >contract expires.Â If I have a contract to >clean the FBI building, and the contract is >terminated, I will be in big trouble if I show >up and pull out my cleaning supplies and try to go to work. > >Even in your scenario, while you might continue >to make widgets or conduct research, you'll no >longer be making widgets for the government or >conducting government research.Â Either you >would be doing it for other clients, or it would >be a hobby (and businesses don't tend to have hobbies). > >That said, the IANA Contract is an odd >bird.Â It's simplistic to think of it as a >contract where the government has a resource and >it contracts with a private party to manage that >resource.Â If it were that simple, the resource >would stay with the government and a new manager >would be found.Â The IANA Contract was much >more about finding oversight and a "home" for a >private resource that started in Jon Postel's >shirtpocket.Â I'm reminded of the book "Are You >My Mother?", where a little hatchling chick runs >around trying to get someone to be its >mother.Â IANA found its mother and 18 years >later (ironically), it's ready to fly on its own. > >Lastly though, I agree that if in fact this "Let >It Go" scenario were actually tried, it would >not be pretty.Â When Congress knocks on the >door, and the NTIA says "IANA? There's no IANA >here.Â The contract was over and she left," there would be hell to pay. > >GregÂ > >On Thu, Dec 17, 2015 at 11:36 AM, David Post ><<mailto:david.g.post@gmail.com>david.g.post(a)gmail.com> wrote: >At 08:36 PM 12/16/2015, Phil Corwin wrote: >>[SNIP] >>Respectfully, while I have heard the Ã¢just >>let the contntract expireÃ¢ scenario before I >>donÃ¢t buy it for three reasons. Â >>First, ICANN has been Ã¢hiredÃ¢ under the >>the contract and when it expires it no longer >>has any right to manage IANA, no more than any >>other contractor has a right to keep performing >>the work it was doing after its contract terminates. >Though it may not matter too much, I'm not sure >that's strictly true ... Generally speaking, a >government contractor DOES have the right to >keep performing work it was doing under contract >after the contract expires.Â If I am the >recipient of a government contract to make >widgets, or to conduct research, when the >contract expires ordinarily I can go on making >widgetsor conducting the research.Â I think the >same thing is true here.Â Depending on exactly >what you mean by "managing IANA," there is a >great deal that ICANN now does under its >contract with USG that it could simply continue >to do when the contract expires.Â >David > > >>Â >>Second, Secretary Strickling is already on the >>public record saying this in January 2015 about >>the FY 2015 prohibition, which is identical to the one in the FY 16 bill: >>We take that seriously. Accordingly, we will >>not use appropriated funds to terminate the >>IANA functions contract with ICANN prior to the >>contract's current expiration date of September >>30, 2015. Nor will we use appropriated dollars >>to amend the cooperative agreement with >>Verisign to eliminate NTIA's role in approving >>changes to the authoritative root zone file >>prior to September 30. On these points, there is no ambiguity. >>That language puts on NTIA on record as viewing >>the transition as something that requires it to >>actively perform two separate actions. >>Â >>Third, and most important, the whole concept of >>the Ã¢trtransitionÃ¢ includes NTIA >>transferring its role to the global >>multistakeholder community which has acquired >>adequate accountability powers, and that >>implies an active handoff and not a passive contract expiration. >>Â >>But we have lots of other lawyers and policy >>wonks on this list, so opinions may vary. >>Â >>Best regards, Philip >>Â >>Â >>Philip S. Corwin, Founding Principal >>Virtualaw LLC >>1155 F Street, NW >>Suite 1050 >>Washington, DC 20004 >><tel:202-559-8597>202-559-8597/Direct >><tel:202-559-8750>202-559-8750/Fax >><tel:202-255-6172>202-255-6172/cell >>Â >>Twitter: @VlawDC >>Â >>"Luck is the residue of design" -- Branch Rickey >>Â >>From: Steve DelBianco [ mailto:sdelbianco@netchoice.org] >>Sent: Wednesday, December 16, 2015 8:18 PM >>To: Phil Corwin; Greg Shatan; Jordan Carter >>Cc: Accountability Cross Community >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>Phil I donÃ¢t tthink the Congressional appr >>appropriations language would prevent the >>transition Ã¢event".Â Â Â NTIA could >>simply allow the IANA contract to expire >>30-Sep-2016 without spending any resources >>whatsoever.Â The contract could just expire, >>leaving in question who has the authority to >>operate the IANA functions.Â But no question >>who would be operating the root, numbers and >>protocols the next day ICANN would. >>< >>Â >>So we (the community) should continue >>developing accountability mechanisms so we can >>hold ICANN accountable if/when it takes control >>of IANA functions.Â Â It could happen on 30-Sep-2016 so letÃ¢â¬s be ready. >>Â >>From: >><<mailto:accountability-cross-community-bounces@icann.org> >>accountability-cross-community-bounces(a)icann.org >> > on behalf of Phil Corwin <<mailto:psc@vlaw-dc.com>psc(a)vlaw-dc.com> >>Date: Wednesday, December 16, 2015 at 7:56 PM >>To: Greg Shatan >><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com >> >, Jordan Carter <<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > >>Cc: Accountability Cross Community >><<mailto:accountability-cross-community@icann.org> >>accountability-cross-community(a)icann.org> >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>NTIA can continue to prepare for the >>transition, including leading an interagency >>review of any Proposal it receives from ICANN. >>But it is prohibited from actually effecting >>the transition until October 1, 2016. >>Â >>Â >>From: >><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >>[ >>mailto:accountability-cross-community-bounces@icann.org] >>On Behalf Of Greg Shatan >>Sent: Wednesday, December 16, 2015 5:07 PM >>To: Jordan Carter >>Cc: Accountability Cross Community >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>As I read this, it does not slow anything >>down.Â We were targeting a transition around September 30, 2015 in any event. >>Â >>Greg >>Â >>On Wed, Dec 16, 2015 at 4:48 PM, Jordan Carter >><<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > wrote: >>Hi all, hi Milton, >>Â >>My understanding of the steps in the timetable >>was that finalising our proposal in January was >>what gave space for a transition in September at the earliest. >>Â >>Are you suggesting that instead it means one of >>the earlier steps can't start when it was intended? >>Â >>I.e. If NTIA could not start its consideration >>until 30 Sep then that does materially change >>things, timing wise. But if it could still do >>its review as part of preparing for a transition, then that wouldn't. >>Â >>Maybe we could ask NTIA for their view of the situation too? >>Â >>Cheers >>Jordan >>On Thursday, 17 December 2015, Mueller, Milton >>L <<mailto:milton@gatech.edu>milton(a)gatech.edu> wrote: >>This is good news, and I hope the co-chairs of >>the CCWG all sit down and read former >>Congressman Boucher's message out loud - better >>yet, sing it to the tune of Jingle Bells! - >>together. The idea that we have to truncate our >>process and twist ourselves into pretzels or >>cave to unreasonable demands from the board in >>order to meet an arbitrary schedule is now, I think, officially dead. >>--MM >> > -----Original Message----- >> > It's also noteworthy that (b) has been added >> saying that the restriction shall >> > not apply in fiscal year 2017. That's a nice >> statement of intention by the >> > drafters of this provision that by the >> commencement of fiscal year 2017 in >> > October of next year the transition will be complete. >> > >> > I don't believe that the adoption of this >> language in any way reflects a stepping >> > back by Congress from the bipartisan consensus which has now been formed >> > in both the House and the Senate to support >> the IANA transition as long as the >> > NTIAÃ¢s originally announced 4 principles >> for IC ICANN accountability are in place >> > and are enforceable as part of the transition plan. >> > >> > Please let me know if you have questions. >> > >> > Rick >> > >> > SEC. 539. (a) None of the funds made available by >> > 21 this Act may be used to relinquish the responsibility of >> > 22 the National Telecommunications and >> Information Ad ministration, during >> > fiscal year 2016, with respect to >> > 24 Internet domain name system functions, including respon- >> > 1 sibility with respect to the authoritative root zone file and >> > 2 the Internet Assigned Numbers Authority functions. >> > 3 (b) Nothwithstanding any other law, subsection (a) >> > 4 of this section shall not apply in fiscal year 2017. >> > >> > >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>Â >>-- >>Jordan Carter >>Chief Executive, InternetNZ >><tel:%2B64-21-442-649>+64-21-442-649 | >><mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz >>Sent on the run, apologies for brevity >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>Â >>No virus found in this message. >>Checked by AVG - <http://www.avg.com>www.avg.com >>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >>Internal Virus Database is out of date. >>No virus found in this message. >>Checked by AVG - <http://www.avg.com>www.avg.com >>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >>Internal Virus Database is out of date. >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >******************************* >David G Post - Senior Fellow, Open Technology >Institute/New America Foundation >blog (Volokh Conspiracy) ><http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post > >book (Jefferson's >Moose)Â ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2nÂ >Â Â Â Â Â >music ><http://tinyurl.com/davidpostmusic%A0>http://tinyurl.com/davidpostmusic >publications etc.Â http://www.davidpost.comÂ Â Â Â Â Â Â Â >******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com ******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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The Board's take on the Mission Statement
by Burr, Becky Dec. 18, 2015

Dec. 18, 2015

I have run a comparison between the Mission Statement with respect to names, which has been on the table since January of this year, and the Board’s proposed substitute. In doing so, I have set aside totally the difficult wording issues relating to regulatory prohibition and contracting authority. I am also setting aside, for the moment, Alan G’s concern regarding the bottom–up policy development language (which I believe is addressed through the contracting language). By any measure, the changes are significant. Because the fundamental role of the IRP is to ensure that ICANN stays within its Mission, the changes in the Mission statement directly impact the effectiveness of the “crown jewels” of this accountability exercise. I have asked Bruce to explain what is encompassed by "the allocation and assignment of names in the root zone” that is not covered by “coordination of the development and implantation of policies.” I encourage each of you to study the side-by-side comparison attached to determine for yourself whether the Board’s approach is consistent with the goals of clarifying ICANN’s limited Mission. [cid:50016878-9AD1-4B24-93CE-645E1C14EDEF] J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

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TR: Transcript, chat and recording - SO-AC-SG-RALO leaders call - 17 December 2015
by Mathieu Weill Dec. 18, 2015

Dec. 18, 2015

Dear colleagues, Below are the transcripts and recordings of the SO/AC leaders call that discussed the Boards comments yesterday. Best Mathieu De : David Olive [mailto:david.olive@icann.org] Envoyé : vendredi 18 décembre 2015 10:44 Objet : Transcript, chat and recording - SO-AC-SG-RALO leaders call - 17 December 2015 Dear Community Leaders: Attached please find the following: 1) Chat 2) Transcript 3) Link to recording http://audio.icann.org/so-ac-sg-ralo-leadership-board-briefing-17dec15-en. mp 3 <http://mailer.samanage.com/wf/click?upn=NrFWbrBstcrPWP369qgbqvRZi89Tr6Mef nO DfvoI5JRBoDZOYc5kkzK-2FhtkHaDYp9vKjRK9xEi-2BqW4NyePPQBIPq8-2B7pt8agp1dKZ8y CX v2WN-2Fj6kwPTZZpGcJAJ79Gc_lGKvkhLe3VgTw0A6eSbvAV8FX4tvpTV6rB-2BHISFdwQEIr1 yQ yGxiJiZDsUfZ-2FiHp6GeHF28-2BH6L6TDjnIv0XvX7m7fu39Kcmzjp1aLEHOJgC49SDUB44MU 2i VCDI47MA6vs7xlb-2FiTcjVd1UeRFTTpvgKWoCks2mdz8pDjinumbH2khOaQiqZioj9Pj0oG-2 Fi 1-2F09hWRYa5pahQcX9R0x3rlT2wISsEubiO1QVmglqTbZOUhyAkpqES3tnOKBsSEIpu4J4JDE Ka YzC0Dfz9qQXeRhKEnAVPiKqmW9Wl6jMDgm48eraGVL-2B9ZjMHn-2BXR8aE3DdvwM7-2FbwdjB HI nLKd0IHh6fdPKppypQdVDgZVpKuNFims4yUq6wAEFsYIakwzKO1QiPSNrPyoxNyMIra7RirgWA b2 7Jvf9of1FmpxX21G31OTDSD6U4o-2FwTzjgYDSzATu5lKow6FfShIf6EmyLyMUDkM-2BaXiNyF Jo L9-2FjDALlWiPUYcs7141oE2zBtCWs> And 4) Link to the Community Leaders Wiki Page (we will be posting the materials here as well) https://community.icann.org/display/soaceabout/Event+Calendar Best regards David David A. Olive Senior Vice President, Policy Development Support General Manager, ICANN Regional Headquarters Istanbul Hakki Yeten Cad. Selenium Plaza No:10/C K:10 34349 Fulya, Besiktas, Istanbul Internet Corporation for Assigned Names and Numbers (ICANN) Direct Line: +90.212.999.6212 Mobile: + 1. 202.341.3611 Mobile: +90.533.341.6550 Email: david.olive(a)icann.org www.icann.org <html><head></head><body style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; color: rgb(0, 0, 0); font-size: 14px; font-family: Calibri, sans-serif; "><div>Dear Community Leaders:</div><span id="OLK_SRC_BODY_SECTION"><div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; color: rgb(0, 0, 0); "><div><span style="font-size: 16px;"><br></span></div><span id="OLK_SRC_BODY_SECTION" style="font-size: 16px;"><div xmlns:v="urn:schemas-microsoft-com:vml" xmlns:o="urn:schemas-microsoft-com:office:office" xmlns:w="urn:schemas-microsoft-com:office:word" xmlns:m="http://schemas.microsoft.com/office/2004/12/omml" xmlns="http://www.w3.org/TR/REC-html40"><div lang="EN-US" link="#0563C1" vlink="#954F72"><div class="WordSection1"><p class="MsoNormal">Attached please find the following:<o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoListParagraph" style="text-indent:-.25in;mso-list:l0 level1 lfo1"><span style="mso-list:Ignore">1)<span style="font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; ">    </span></span>Chat<o:p></o:p></p><p class="MsoListParagraph" style="text-indent:-.25in;mso-list:l0 level1 lfo1"><span style="mso-list:Ignore">2)<span style="font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; ">    </span></span>Transcript<o:p></o:p></p><p class="MsoListParagraph" style="text-indent:-.25in;mso-list:l0 level1 lfo1"><span style="mso-list:Ignore">3)<span style="font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; ">    </span></span>Link to recording<o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoNormal"><span style="color: rgb(17, 17, 17); "><a href="http://mailer.samanage.com/wf/click?upn=NrFWbrBstcrPWP369qgbqvRZi89T r6MefnODfvoI5JRBoDZOYc5kkzK-2FhtkHaDYp9vKjRK9xEi-2BqW4NyePPQBIPq8-2B7pt8ag p1dKZ8yCXv2WN-2Fj6kwPTZZpGcJAJ79Gc_lGKvkhLe3VgTw0A6eSbvAV8FX4tvpTV6rB-2BHI SFdwQEIr1yQyGxiJiZDsUfZ-2FiHp6GeHF28-2BH6L6TDjnIv0XvX7m7fu39Kcmzjp1aLEHOJg C49SDUB44MU2iVCDI47MA6vs7xlb-2FiTcjVd1UeRFTTpvgKWoCks2mdz8pDjinumbH2khOaQi qZioj9Pj0oG-2Fi1-2F09hWRYa5pahQcX9R0x3rlT2wISsEubiO1QVmglqTbZOUhyAkpqES3tn OKBsSEIpu4J4JDEKaYzC0Dfz9qQXeRhKEnAVPiKqmW9Wl6jMDgm48eraGVL-2B9ZjMHn-2BXR8 aE3DdvwM7-2FbwdjBHInLKd0IHh6fdPKppypQdVDgZVpKuNFims4yUq6wAEFsYIakwzKO1QiPS NrPyoxNyMIra7RirgWAb27Jvf9of1FmpxX21G31OTDSD6U4o-2FwTzjgYDSzATu5lKow6FfShI f6EmyLyMUDkM-2BaXiNyFJoL9-2FjDALlWiPUYcs7141oE2zBtCWs"><span style="color:#0066B2">http://audio.icann.org/so-ac-sg-ralo-leadership-boar d-briefing-17dec15-en.mp3</span></a></span><o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoNormal">And<o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoListParagraph" style="text-indent:-.25in;mso-list:l0 level1 lfo1"><span style="mso-list:Ignore">4)<span style="font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; ">    </span></span>Link to the Community Leaders Wiki Page  (we will be posting the materials here as well) <o:p></o:p></p><p class="MsoNormal"><o:p> </o:p></p><p class="MsoNormal"><a href="https://community.icann.org/display/soaceabout/Event+Calendar">https ://community.icann.org/display/soaceabout/Event+Calendar</a><o:p></o:p></p ><p class="MsoNormal"><o:p> </o:p></p></div></div></div></span><div><br>< /div><span id="OLK_SRC_BODY_SECTION" style="font-size: 16px;"><div xmlns:v="urn:schemas-microsoft-com:vml" xmlns:o="urn:schemas-microsoft-com:office:office" xmlns:w="urn:schemas-microsoft-com:office:word" xmlns:m="http://schemas.microsoft.com/office/2004/12/omml" xmlns="http://www.w3.org/TR/REC-html40"><div lang="EN-US" link="#0563C1" vlink="#954F72"><div class="WordSection1"><p class="MsoNormal">Best regards           David</p></div></div></div></span></div></span><div><br></div><div><br></d iv><div><div><div><font face="Arial" style="font-size: 10px; ">David A. Olive</font></div><div><div><font face="Arial" style="font-size: 10px; ">Senior Vice President, Policy Development Support<br><font>General Manager, ICANN Regional Headquarters –Istanbul</font></font></div><div><span style="font-size: 10px; ">Hakki Yeten Cad. Selenium Plaza No:10/C K:10 34349 Fulya, Besiktas, Istanbul</span></div><div><font face="Arial" style="font-size: 10px; ">Internet Corporation for Assigned Names and Numbers (ICANN)</font></div><div><font face="Arial" style="font-size: 10px; "><br></font></div><div><font face="Arial" style="font-size: 10px; "><font>Direct Line:</font><font> +90.212.999.6212 </font></font></div><div><fo nt face="Arial" style="font-size: 10px; ">Mobile:       + 1. 202.341.3611</font></div></div><div><font face="Arial" style="font-size: 10px; ">Mobile:       +90.533.341.6550 </font></div><div><font face="Arial" style="font-size: 10px; ">Email:  <a href="mailto:david.olive@icann.org">david.olive(a)icann.org <mailto:david.olive@icann.org%3c/a%3e%3c/font%3e%3c/div%3e%3cdiv%3e%3cfont > </a></font></div><div><font face="Arial" style="font-size: 10px; ">www.icann.org <http://www.icann.org%3c/font%3e%3c/div%3e%3c/div%3e%3c/div%3e%3cdiv%3e%3c font> </font></div></div></div><div><font face="Arial" style="font-size: 10px; "><br></font></div><span id="OLK_SRC_BODY_SECTION"><div><div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; color: rgb(0, 0, 0); "><style></style></div></div></span></body></html>

2 1

Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
by David Post Dec. 18, 2015

Dec. 18, 2015

That's correct: "If I have a contract to clean the FBI building, and the contract is terminated, I will be in big trouble if I show up and pull out my cleaning supplies and try to go to work." But that's because without the contract, you're a trespasser when you go into the FBI building. If you have a contract to clean Rock Creek Park, and the contract is terminated, there's no problem if you show up afterwards and clean the park - you're allowed to be there, even without the contract, and there's no law against cleaning up parks on your own. If you have a government contract to conduct research on cancer formation in mice, you can continue to do the research after the contract is terminated, because there's no law against doing research on cancer formation in mice. The IANA Contract is indeed, as you put it, an "odd bird." IMHO, it is more like the parks cleaning contract than the FBI building cleaning contract - ICANN )(or anyone else) would not be breaking any law (or "trespassing") if it continued to do everything it does today, even after the termination of the contract. Phil Corwin wrote: >PC: If the IANA contract expired tonight ICANN >could keep doing everything it is doing today >exceept recommend changes to the root zone. ... Even that, I would argue, is something ICANN could do perfectly lawfully even after contract termination - the same way Virtualaw LLC, or the University of Minnesota, or David Post can perfectly lawfully "recommend changes to the root zone." After contract termination, the root zone operator is not obligated to do anything ICANN recommends - but that doesn't speak to whether ICANN can legally continue to do what it is currently doing. If, after termination, ICANN recommended a change to the Root zone and the RIR's implemented that change in the root zone files under their control, would there have been any violation of any law? I would say "No." David At 02:43 PM 12/17/2015, Greg Shatan wrote: >On the other hand, if you have a government >contract to operate a resource or provide >particular services, you can't do so after the >contract expires.Â If I have a contract to >clean the FBI building, and the contract is >terminated, I will be in big trouble if I show >up and pull out my cleaning supplies and try to go to work. > >Even in your scenario, while you might continue >to make widgets or conduct research, you'll no >longer be making widgets for the government or >conducting government research.Â Either you >would be doing it for other clients, or it would >be a hobby (and businesses don't tend to have hobbies). > >That said, the IANA Contract is an odd >bird.Â It's simplistic to think of it as a >contract where the government has a resource and >it contracts with a private party to manage that >resource.Â If it were that simple, the resource >would stay with the government and a new manager >would be found.Â The IANA Contract was much >more about finding oversight and a "home" for a >private resource that started in Jon Postel's >shirtpocket.Â I'm reminded of the book "Are You >My Mother?", where a little hatchling chick runs >around trying to get someone to be its >mother.Â IANA found its mother and 18 years >later (ironically), it's ready to fly on its own. > >Lastly though, I agree that if in fact this "Let >It Go" scenario were actually tried, it would >not be pretty.Â When Congress knocks on the >door, and the NTIA says "IANA? There's no IANA >here.Â The contract was over and she left," there would be hell to pay. > >GregÂ > >On Thu, Dec 17, 2015 at 11:36 AM, David Post ><<mailto:david.g.post@gmail.com>david.g.post(a)gmail.com> wrote: >At 08:36 PM 12/16/2015, Phil Corwin wrote: >>[SNIP] >>Respectfully, while I have heard the Ã¢just >>let the contntract expireÃ¢ scenario before I >>donÃ¢t buy it for three reasons. Â >>First, ICANN has been Ã¢hiredÃ¢ under the >>the contract and when it expires it no longer >>has any right to manage IANA, no more than any >>other contractor has a right to keep performing >>the work it was doing after its contract terminates. >Though it may not matter too much, I'm not sure >that's strictly true ... Generally speaking, a >government contractor DOES have the right to >keep performing work it was doing under contract >after the contract expires.Â If I am the >recipient of a government contract to make >widgets, or to conduct research, when the >contract expires ordinarily I can go on making >widgetsor conducting the research.Â I think the >same thing is true here.Â Depending on exactly >what you mean by "managing IANA," there is a >great deal that ICANN now does under its >contract with USG that it could simply continue >to do when the contract expires.Â >David > > >>Â >>Second, Secretary Strickling is already on the >>public record saying this in January 2015 about >>the FY 2015 prohibition, which is identical to the one in the FY 16 bill: >>We take that seriously. Accordingly, we will >>not use appropriated funds to terminate the >>IANA functions contract with ICANN prior to the >>contract's current expiration date of September >>30, 2015. Nor will we use appropriated dollars >>to amend the cooperative agreement with >>Verisign to eliminate NTIA's role in approving >>changes to the authoritative root zone file >>prior to September 30. On these points, there is no ambiguity. >>That language puts on NTIA on record as viewing >>the transition as something that requires it to >>actively perform two separate actions. >>Â >>Third, and most important, the whole concept of >>the Ã¢trtransitionÃ¢ includes NTIA >>transferring its role to the global >>multistakeholder community which has acquired >>adequate accountability powers, and that >>implies an active handoff and not a passive contract expiration. >>Â >>But we have lots of other lawyers and policy >>wonks on this list, so opinions may vary. >>Â >>Best regards, Philip >>Â >>Â >>Philip S. Corwin, Founding Principal >>Virtualaw LLC >>1155 F Street, NW >>Suite 1050 >>Washington, DC 20004 >><tel:202-559-8597>202-559-8597/Direct >><tel:202-559-8750>202-559-8750/Fax >><tel:202-255-6172>202-255-6172/cell >>Â >>Twitter: @VlawDC >>Â >>"Luck is the residue of design" -- Branch Rickey >>Â >>From: Steve DelBianco [ mailto:sdelbianco@netchoice.org] >>Sent: Wednesday, December 16, 2015 8:18 PM >>To: Phil Corwin; Greg Shatan; Jordan Carter >>Cc: Accountability Cross Community >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>Phil I donÃ¢t tthink the Congressional appr >>appropriations language would prevent the >>transition Ã¢event".Â Â Â NTIA could >>simply allow the IANA contract to expire >>30-Sep-2016 without spending any resources >>whatsoever.Â The contract could just expire, >>leaving in question who has the authority to >>operate the IANA functions.Â But no question >>who would be operating the root, numbers and >>protocols the next day ICANN would. >>< >>Â >>So we (the community) should continue >>developing accountability mechanisms so we can >>hold ICANN accountable if/when it takes control >>of IANA functions.Â Â It could happen on 30-Sep-2016 so letÃ¢â¬s be ready. >>Â >>From: >><<mailto:accountability-cross-community-bounces@icann.org> >>accountability-cross-community-bounces(a)icann.org >> > on behalf of Phil Corwin <<mailto:psc@vlaw-dc.com>psc(a)vlaw-dc.com> >>Date: Wednesday, December 16, 2015 at 7:56 PM >>To: Greg Shatan >><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com >> >, Jordan Carter <<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > >>Cc: Accountability Cross Community >><<mailto:accountability-cross-community@icann.org> >>accountability-cross-community(a)icann.org> >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>NTIA can continue to prepare for the >>transition, including leading an interagency >>review of any Proposal it receives from ICANN. >>But it is prohibited from actually effecting >>the transition until October 1, 2016. >>Â >>Â >>From: >><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >>[ >>mailto:accountability-cross-community-bounces@icann.org] >>On Behalf Of Greg Shatan >>Sent: Wednesday, December 16, 2015 5:07 PM >>To: Jordan Carter >>Cc: Accountability Cross Community >>Subject: Re: [CCWG-ACCT] FW: FY16 >>Appropriations Act Extends IANA Transition Freeze without DOTCOM Act >>Â >>As I read this, it does not slow anything >>down.Â We were targeting a transition around September 30, 2015 in any event. >>Â >>Greg >>Â >>On Wed, Dec 16, 2015 at 4:48 PM, Jordan Carter >><<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > wrote: >>Hi all, hi Milton, >>Â >>My understanding of the steps in the timetable >>was that finalising our proposal in January was >>what gave space for a transition in September at the earliest. >>Â >>Are you suggesting that instead it means one of >>the earlier steps can't start when it was intended? >>Â >>I.e. If NTIA could not start its consideration >>until 30 Sep then that does materially change >>things, timing wise. But if it could still do >>its review as part of preparing for a transition, then that wouldn't. >>Â >>Maybe we could ask NTIA for their view of the situation too? >>Â >>Cheers >>Jordan >>On Thursday, 17 December 2015, Mueller, Milton >>L <<mailto:milton@gatech.edu>milton(a)gatech.edu> wrote: >>This is good news, and I hope the co-chairs of >>the CCWG all sit down and read former >>Congressman Boucher's message out loud - better >>yet, sing it to the tune of Jingle Bells! - >>together. The idea that we have to truncate our >>process and twist ourselves into pretzels or >>cave to unreasonable demands from the board in >>order to meet an arbitrary schedule is now, I think, officially dead. >>--MM >> > -----Original Message----- >> > It's also noteworthy that (b) has been added >> saying that the restriction shall >> > not apply in fiscal year 2017. That's a nice >> statement of intention by the >> > drafters of this provision that by the >> commencement of fiscal year 2017 in >> > October of next year the transition will be complete. >> > >> > I don't believe that the adoption of this >> language in any way reflects a stepping >> > back by Congress from the bipartisan consensus which has now been formed >> > in both the House and the Senate to support >> the IANA transition as long as the >> > NTIAÃ¢s originally announced 4 principles >> for IC ICANN accountability are in place >> >> > and are enforceable as part of the transition plan. >> > >> > Please let me know if you have questions. >> > >> > Rick >> > >> > SEC. 539. (a) None of the funds made available by >> > 21 this Act may be used to relinquish the responsibility of >> > 22 the National Telecommunications and >> Information Ad ministration, during >> > fiscal year 2016, with respect to >> > 24 Internet domain name system functions, including respon- >> > 1 sibility with respect to the authoritative root zone file and >> > 2 the Internet Assigned Numbers Authority functions. >> > 3 (b) Nothwithstanding any other law, subsection (a) >> > 4 of this section shall not apply in fiscal year 2017. >> > >> > >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>Â >>-- >>Jordan Carter >>Chief Executive, InternetNZ >> >><tel:%2B64-21-442-649>+64-21-442-649 | >><mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz >>Sent on the run, apologies for brevity >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >>Â >>No virus found in this message. >>Checked by AVG - <http://www.avg.com>www.avg.com >>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >>Internal Virus Database is out of date. >>No virus found in this message. >>Checked by AVG - <http://www.avg.com>www.avg.com >>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >>Internal Virus Database is out of date. >>_______________________________________________ >>Accountability-Cross-Community mailing list >><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >> >>https://mm.icann.org/mailman/listinfo/accountability-cross-community >******************************* >David G Post - Senior Fellow, Open Technology >Institute/New America Foundation >blog (Volokh Conspiracy) ><http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post > >book (Jefferson's >Moose)Â ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2nÂ >Â Â Â Â Â >music ><http://tinyurl.com/davidpostmusic%A0>http://tinyurl.com/davidpostmusic >publications etc.Â http://www.davidpost.comÂ Â Â Â Â Â Â Â >******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

1 0

FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
by Phil Corwin Dec. 17, 2015

Dec. 17, 2015

FYI, just blogged on this... http://www.circleid.com/posts/20151216_fy16_approp_act_extends_iana_transit… Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey Sent from my iPad ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 Internal Virus Database is out of date.

10 13

Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
by David Post Dec. 17, 2015

Dec. 17, 2015

At 08:36 PM 12/16/2015, Phil Corwin wrote: >[SNIP] >Respectfully, while I have heard the âjust let >the contract expireâ scenario before I donât buy it for three reasons. > >First, ICANN has been âhiredâ under the >contract and when it expires it no longer has >any right to manage IANA, no more than any other >contractor has a right to keep performing the >work it was doing after its contract terminates. Though it may not matter too much, I'm not sure that's strictly true ... Generally speaking, a government contractor DOES have the right to keep performing work it was doing under contract after the contract expires. If I am the recipient of a government contract to make widgets, or to conduct research, when the contract expires ordinarily I can go on making widgetsor conducting the research. I think the same thing is true here. Depending on exactly what you mean by "managing IANA," there is a great deal that ICANN now does under its contract with USG that it could simply continue to do when the contract expires. David > >Second, Secretary Strickling is already on the >public record saying this in January 2015 about >the FY 2015 prohibition, which is identical to the one in the FY 16 bill: >We take that seriously. Accordingly, we will not >use appropriated funds to terminate the IANA >functions contract with ICANN prior to the >contract's current expiration date of September >30, 2015. Nor will we use appropriated dollars >to amend the cooperative agreement with Verisign >to eliminate NTIA's role in approving changes to >the authoritative root zone file prior to >September 30. On these points, there is no ambiguity. >That language puts on NTIA on record as viewing >the transition as something that requires it to >actively perform two separate actions. > >Third, and most important, the whole concept of >the âtransitionâ includes NTIA transferring >its role to the global multistakeholder >community which has acquired adequate >accountability powers, and that implies an >active handoff and not a passive contract expiration. > >But we have lots of other lawyers and policy >wonks on this list, so opinions may vary. > >Best regards, Philip > > >Philip S. Corwin, Founding Principal >Virtualaw LLC >1155 F Street, NW >Suite 1050 >Washington, DC 20004 >202-559-8597/Direct >202-559-8750/Fax >202-255-6172/cell > >Twitter: @VlawDC > >"Luck is the residue of design" -- Branch Rickey > >From: Steve DelBianco [mailto:sdelbianco@netchoice.org] >Sent: Wednesday, December 16, 2015 8:18 PM >To: Phil Corwin; Greg Shatan; Jordan Carter >Cc: Accountability Cross Community >Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations >Act Extends IANA Transition Freeze without DOTCOM Act > >Phil I donât tthink the Congressional >appropriations language would prevent the >transition âevent". NTIA could simply allow >the IANA contract to expire 30-Sep-2016 without >spending any resources whatsoever. The contract >could just expire, leaving in question who has >the authority to operate the IANA >functions. But no question who would be >operating the root, numbers and protocols the next day ICANN would. >< > >So we (the community) should continue developing >accountability mechanisms so we can hold ICANN >accountable if/when it takes control of IANA >functions. It could happen on 30-Sep-2016 so letâs be ready. > >From: ><<mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org> >on behalf of Phil Corwin <<mailto:psc@vlaw-dc.com>psc(a)vlaw-dc.com> >Date: Wednesday, December 16, 2015 at 7:56 PM >To: Greg Shatan ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com>, >Jordan Carter <<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz> >Cc: Accountability Cross Community ><<mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org> >Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations >Act Extends IANA Transition Freeze without DOTCOM Act > >NTIA can continue to prepare for the transition, >including leading an interagency review of any >Proposal it receives from ICANN. But it is >prohibited from actually effecting the transition until October 1, 2016. > > >From: ><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Greg Shatan >Sent: Wednesday, December 16, 2015 5:07 PM >To: Jordan Carter >Cc: Accountability Cross Community >Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations >Act Extends IANA Transition Freeze without DOTCOM Act > >As I read this, it does not slow anything >down. We were targeting a transition around September 30, 2015 in any event. > >Greg > >On Wed, Dec 16, 2015 at 4:48 PM, Jordan Carter ><<mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz> wrote: >Hi all, hi Milton, > >My understanding of the steps in the timetable >was that finalising our proposal in January was >what gave space for a transition in September at the earliest. > >Are you suggesting that instead it means one of >the earlier steps can't start when it was intended? > >I.e. If NTIA could not start its consideration >until 30 Sep then that does materially change >things, timing wise. But if it could still do >its review as part of preparing for a transition, then that wouldn't. > >Maybe we could ask NTIA for their view of the situation too? > >Cheers >Jordan > >On Thursday, 17 December 2015, Mueller, Milton L ><<mailto:milton@gatech.edu>milton(a)gatech.edu> wrote: >This is good news, and I hope the co-chairs of >the CCWG all sit down and read former >Congressman Boucher's message out loud - better >yet, sing it to the tune of Jingle Bells! - >together. The idea that we have to truncate our >process and twist ourselves into pretzels or >cave to unreasonable demands from the board in >order to meet an arbitrary schedule is now, I think, officially dead. >--MM > > > -----Original Message----- > > It's also noteworthy that (b) has been added > saying that the restriction shall > > not apply in fiscal year 2017. That's a nice statement of intention by the > > drafters of this provision that by the commencement of fiscal year 2017 in > > October of next year the transition will be complete. > > > > I don't believe that the adoption of this > language in any way reflects a stepping > > back by Congress from the bipartisan consensus which has now been formed > > in both the House and the Senate to support > the IANA transition as long as the > > NTIAâs originally announced 4 principles > for ICANN accountability are in place > > and are enforceable as part of the transition plan. > > > > Please let me know if you have questions. > > > > Rick > > > > SEC. 539. (a) None of the funds made available by > > 21 this Act may be used to relinquish the responsibility of > > 22 the National Telecommunications and Information Ad ministration, during > > fiscal year 2016, with respect to > > 24 Internet domain name system functions, including respon- > > 1 sibility with respect to the authoritative root zone file and > > 2 the Internet Assigned Numbers Authority functions. > > 3 (b) Nothwithstanding any other law, subsection (a) > > 4 of this section shall not apply in fiscal year 2017. > > > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > >-- >Jordan Carter >Chief Executive, InternetNZ > ><tel:%2B64-21-442-649>+64-21-442-649 | ><mailto:jordan@internetnz.net.nz>jordan(a)internetnz.net.nz > >Sent on the run, apologies for brevity > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >No virus found in this message. >Checked by AVG - <http://www.avg.com>www.avg.com >Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >Internal Virus Database is out of date. > >No virus found in this message. >Checked by AVG - <http://www.avg.com>www.avg.com >Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 >Internal Virus Database is out of date. >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Re: [CCWG-ACCT] The Board's take on the Mission Statement
by Burr, Becky Dec. 17, 2015

Dec. 17, 2015

This is helpful Bruce. I think the language re: allocation and assignment of names in the root as a result of policies works. Also, I am relieved that the language re the permissible scope of ICANN policies is not a fundamental divide – at least from your perspective. Thank you. A couple of key points and questions: * Reading carefully, it appears that the Board comments with respect to the Mission Statement that rise to the level of a public interest objection are limited to “the contractual enforcement issues.” Can you confirm that this? * Even though this is cast as “the contractual enforcement issues,” I take it that the board actually objects to the provision that says: “ICANN shall not impose regulations on services that use the Internet’s unique identifiers, or the content that such services carry or provide.” [I make that assumption because I don’t know why the board would object to the following statement: "ICANN shall have the ability to negotiate, enter into and enforce agreements with contracted parties in service of its Mission.”] Can you confirm this? * Could you attempt to be concrete about why the Board objects to the regulatory prohibition notwithstanding the following explanatory text, which you previously indicated is not objectionable: 1. The prohibition on the regulation of “content” is not intended to prevent ICANN policies from taking into account the use of domain names as identifiers in various natural languages. 2. The issues identified in Specification 1 to the Registry Agreement and Specification 4 to the Registrar Accreditation Agreement (the so-called “Picket Fence”) are intended and understood to be within the scope of ICANN’s Mission. A side-by-side comparison of the formulation of the Picket Fence in the respective agreements is attached for reference. 3. For the avoidance of uncertainty, the language of existing registry agreements and registrar accreditation agreements should be grandfathered. [ADDITIONAL SUPPLEMENTARY LANGUAGE AGREED TO BUT NOT IN 3RD DRAFT PROPOSAL: This means that the parties who entered into existing contracts intended (and intend) to be bound by those agreements. It means that neither a contracting party nor anyone else should be able to bring a case that any provisions of such agreements on their face are ultra vires. It does not, however, modify any contracting party’s right to challenge the other party¹s interpretation of that language. It does not modify the right of any person or entity materially affected (as defined in the Bylaws) by an action or inaction in violation ICANN¹s Bylaws to seek redress through an IRP. Nor does it modify the scope of ICANN’s Mission.] 4. The CCWG anticipates that the drafters may need to modify provisions of the Articles of Incorporation to align with the revised Bylaws. NOTE: Not a trick question Bruce, I’m really trying to identify a way forward. Although some of us were comfortable relying on a clear and limited Mission Statement, many – certainly most participants who expressed an opinion on this issue - felt that a clear prohibition on certain types of regulation was mandatory, particularly in light of the “legislative history” of this language (it appeared in both the first and second draft report, so its removal would be construed against the concept). To move the ball forward, we need to have a conversation that goes beyond the mere assertion that “ICANN is not a regulator.” Is there a formulation of the regulatory prohibition that the Board could accept, or is there additional explanatory text that would make the Board comfortable that the Bylaws drafters had sufficient direction to proceed. I am pressing because I have the sense that while we may not that far apart, we could really reach an impasse on this matter. Let’s not worry specifically about placement, but focus on the concept. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Date: Thursday, December 17, 2015 at 4:13 AM To: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The Board's take on the Mission Statement Hello Becky, The addition of “allocation and assignment of names” was intended to capture the role of putting names in the root zone including new gTLDs and IDN-ccTLDs.” I accept that this could be considered as part of “implementation of policies” = but it was trying to be more specific. If you are concerned about the language you could reword like: “coordinate the development and implementation of polices (including the allocation and assignment of names in the root zone as a result of those policies). “ Speaking personally I have no issue with also including the last two paragraphs in your note below which is really a limitation on what policies can be created and how they should be created. This text is really lifted from the registry and registrar agreements so ICANN has already committed to that. It is not something that we as a board directly discussed. Regards, Bruce Tonkin From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Thursday, 17 December 2015 3:00 AM To: Accountability Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] The Board's take on the Mission Statement I have run a comparison between the Mission Statement with respect to names, which has been on the table since January of this year, and the Board’s proposed substitute. In doing so, I have set aside totally the difficult wording issues relating to regulatory prohibition and contracting authority. I am also setting aside, for the moment, Alan G’s concern regarding the bottom–up policy development language (which I believe is addressed through the contracting language). By any measure, the changes are significant. Because the fundamental role of the IRP is to ensure that ICANN stays within its Mission, the changes in the Mission statement directly impact the effectiveness of the “crown jewels” of this accountability exercise. I have asked Bruce to explain what is encompassed by "the allocation and assignment of names in the root zone” that is not covered by “coordination of the development and implantation of policies.” I encourage each of you to study the side-by-side comparison attached to determine for yourself whether the Board’s approach is consistent with the goals of clarifying ICANN’s limited Mission. [cid:image001.png@01D13907.5FF1EE20] J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz<http://www.neustar.biz>

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TR: Board Briefing + Q&A to SO-AC-SG-C-RALO Leaders - 17 Dec 13:00 UTC
by Mathieu Weill Dec. 17, 2015

Dec. 17, 2015

Dear Colleagues, As announced in our call, a Board briefing is organized today regarding their comment to our Draft report, and none of the co chairs was able to attend. We have shared the following written input with the group of SO-AC-SG-RALO and thought it might be useful to the group as well. Best Thomas, Leon & Mathieu -----Message d'origine----- De : Mathieu Weill [mailto:weill@afnic.fr] Envoyé : jeudi 17 décembre 2015 13:15 Objet : RE: Board Briefing + Q&A to SO-AC-SG-C-RALO Leaders - 17 Dec 13:00 UTC All, As none of the CCWG co chairs can attend this briefing, the following is a quick update from us. There have been questions with respect to the next steps for the work of the CCWG. The questions were asked particularly in the light of the comments on our third report by the ICANN Board. Firstly, we would like to express our appreciation for the Board's thoughtful contributions and the efforts that were put into a comprehensive comment on numerous aspects of our report. As mentioned during the CCWG call earlier this week, the Board comments will be analyzed as other comments from Chartering Organizations and the community. Thus, the CCWG has not changed its approach to the next steps that need to be taken. Our report remains to be the basis for comments. As we previously announced, the CCWG is now awaiting feedback from the Chartering Organizations to then assess whether a supplemental draft will be required. Additionally, the CCWG will assess whether comments require the group to make changes to its recommendations and proactively reach out to the Chartering Organizations. We are reiterating this point to confirm to the Chartering Organizations that their potential statements of support will not extend to potential future changes that substantially change the recommendations. While we have asked the Chartering Oranizations to respond by December 21st, we know that some organizations need a few more days to provide feedback. Thus, we expect an assessment of all input to be conducted early January. It will be at that point in time when a decision on the requirement of a supplemental draft will be made. Finally, we would like to remind everyone that comments were requested particularly with respect to support or rejection of the CCWG recommendations. Issues or recommendations that relate to the implementation of these, shall be discussed an taken into consideration at a later stage. It is our impression that the issues raised by should be dealt with and at that stage. Best regards and have a fruitful call, Thomas, Leon & Mathieu CCWG co-chairs

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Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?
by Greg Shatan Dec. 16, 2015

Dec. 16, 2015

All, In reviewing the Third Draft Proposal, concerns have been raised within my constituency that the proposed Bylaw does more than replace an existing "majority" threshold with a new "2/3" threshold. The concern is that the proposed Bylaw introduces a "mandatory vote" by the Board in order to reject GAC Advice where the Bylaws do not currently require a Board vote. Further, there appears to be a concern that, if the Board does not take a vote and affirmatively reject a piece of GAC advice, then that GAC advice becomes binding on ICANN. These concerns stem from a reading of the draft Bylaw (new language in red): The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds of the Board, and tThe Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. The current language of the Bylaw makes no reference to voting, only to the far more ambiguous "determines to take an action." As such, adding a reference to a vote can be seen to add a new element (aside from the introduction of a 2/3 threshold): the element of a bylaws-mandated vote. Similarly, the statement that GAC Advice can only be rejected by a vote of the Board can be read to state that if no such vote is taken (or if such vote is taken and fails) that the GAC Advice is then something ICANN is bound to follow. I don't think either of these things were intended by the CCWG. Whether they are misreadings of our draft language or unintended consequences of the drafting, this concern is troubling. If it is the intent of some of those drafting this language to force a vote where none is currently required, then that is even more troubling. I would appreciate some clarification on these matters that I can bring back to my group. I would also appreciate the CCWG considering a change in language to remove this ambiguity which is currently causing great consternation in my group. I suggest the language below. This m ore closely track s the language of the existing bylaw and avoid the use of the term "vote," with its potential unintended consequences: The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. If the Board determines to take an action that is not consistent with Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, such determination must be supported by two-thirds of the Board, and the Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. I would appreciate your thoughts on this point and the revised language. Thank you. Greg

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