FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
FYI, just blogged on this... http://www.circleid.com/posts/20151216_fy16_approp_act_extends_iana_transiti... 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AVG - www.avg.com Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 Internal Virus Database is out of date.
I thought you might be interested in the attached from Sidley partner Rick Boucher who served in Congress for 28 years. HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com www.sidley.com Holly and colleagues, I have pasted below the text from the agreement of the conferees resolving differences between the House and the Senate over the fiscal year 2016 budget. The NTIA is prevented by this language from relinquishing IANA contract oversight during fiscal year 2016, which ends next September 30. It's noteworthy that the language does not restrict NTIA from taking steps to put the transition in place including all activities related to NTIA review of the transition plan. The language merely prevents NTIA from terminating its oversight and completing the transition prior to next September 30. As I understand the current schedule, the transition would not be completed until that point in time in any event. 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 NTIA’s 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. RICK BOUCHER Partner Sidley Austin LLP 1501 K Street, N.W. Washington, DC 20005 +1 202 736 8290 rboucher@sidley.com www.sidley.com SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
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 NTIA’s 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.
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 <milton@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 NTIA’s 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.
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-- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz Sent on the run, apologies for brevity
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 <jordan@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 <milton@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 NTIA’s 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 Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Chief Executive, InternetNZ
+64-21-442-649 | jordan@internetnz.net.nz
Sent on the run, apologies for brevity
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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. 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: accountability-cross-community-bounces@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 <jordan@internetnz.net.nz<mailto:jordan@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 <milton@gatech.edu<mailto:milton@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 NTIA’s 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 Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649<tel:%2B64-21-442-649> | jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 Internal Virus Database is out of date.
Phil — I don’t think the Congressional appropriations language would prevent the transition “event". 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 let’s be ready. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Wednesday, December 16, 2015 at 7:56 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@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: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@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 <jordan@internetnz.net.nz<mailto:jordan@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 <milton@gatech.edu<mailto:milton@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 NTIA’s 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 Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649<tel:%2B64-21-442-649> | jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 Internal Virus Database is out of date.
Steve, I absolutely agree that the community should keep working on the Proposal and WS2 measures because the best assurance of seeing the transition take place is timely delivery of a sound accountability Proposal and accompanying implementation, including the necessary Bylaws revisions. And if everything is in place on September 30 there is probably no need to extend the contract to have a transition occur on October 1 (unless the Administration decides to postpone the action until post-election, or Congress again extends the prohibition).. Respectfully, while I have heard the “just let the contract expire” scenario before I don’t buy it for three reasons. First, ICANN has been “hired” 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. 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 “transition” 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 don’t think the Congressional appropriations language would prevent the transition “event". 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 let’s be ready. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Wednesday, December 16, 2015 at 7:56 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@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: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@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 <jordan@internetnz.net.nz<mailto:jordan@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 <milton@gatech.edu<mailto:milton@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 NTIA’s 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 Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649<tel:%2B64-21-442-649> | jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://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 - www.avg.com<http://www.avg.com> Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 Internal Virus Database is out of date.
FWIW, the second point is the decisive one. The lawyers can argue either side of the question. But A/S Strickling knows what Congress means, as does Congress and he understands that if he uses the “passive termination” option the Congress will severely punish his agency …. The key then is whether Congress chooses to continue this language a year from now …. We shall see … Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key <http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...> From: Phil Corwin [mailto:psc@vlaw-dc.com] Sent: Wednesday, December 16, 2015 8:37 PM To: Steve DelBianco <sdelbianco@netchoice.org>; Greg Shatan <gregshatanipc@gmail.com>; Jordan Carter <jordan@internetnz.net.nz> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act Steve, I absolutely agree that the community should keep working on the Proposal and WS2 measures because the best assurance of seeing the transition take place is timely delivery of a sound accountability Proposal and accompanying implementation, including the necessary Bylaws revisions. And if everything is in place on September 30 there is probably no need to extend the contract to have a transition occur on October 1 (unless the Administration decides to postpone the action until post-election, or Congress again extends the prohibition).. Respectfully, while I have heard the “just let the contract expire” scenario before I don’t buy it for three reasons. First, ICANN has been “hired” 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. 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 “transition” 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 don’t think the Congressional appropriations language would prevent the transition “event". 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 let’s be ready. From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > on behalf of Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com> > Date: Wednesday, December 16, 2015 at 7:56 PM To: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > Cc: Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@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: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@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 <jordan@internetnz.net.nz <mailto:jordan@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 <milton@gatech.edu <mailto:milton@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 NTIA’s 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 Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 <tel:%2B64-21-442-649> | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _____ No virus found in this message. Checked by AVG - www.avg.com <http://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 - www.avg.com <http://www.avg.com> Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 Internal Virus Database is out of date.
What I find interesting is that this law prevents NTIA spending out of this appropriation on the transition. So whence come the funds for the expenditure it IS making on the transition work? Some other budget? On 17/12/15 00:56, Phil Corwin wrote:
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.
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*From:*accountability-cross-community-bounces@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 <jordan@internetnz.net.nz <mailto:jordan@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 <milton@gatech.edu <mailto:milton@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 NTIA’s 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 Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Chief Executive, InternetNZ
+64-21-442-649 <tel:%2B64-21-442-649> | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>
Sent on the run, apologies for brevity
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I agree with Rick that there remains a bipartisan consensus for a transition meeting NTIA conditions, and I agree with Paul that it is probably wise not to read too much future intent into the language of subsection b, especially since political dynamics can change on a dime. As I wrote in my article today, I read the “Notwithstanding any other law” introduction of revised subsection b as contemplating possible Senate passage and ultimate enactment of the DOTCOM Act. However, as a practical matter, I think that inclusion in this Appropriations bill may have been the last chance for DOTCOM. Majority Leader McConnell has strained relations with Sen. Cruz, so I don’t see him handing him an opportunity to grandstand on the Senate floor in the middle of Presidential primary season. 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: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Wednesday, December 16, 2015 4:49 PM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act 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 <milton@gatech.edu<mailto:milton@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 NTIA’s 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 Accountability-Cross-Community@icann.org<javascript:;> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15 Internal Virus Database is out of date.
Thanks Holly. Having worked on the Hill myself, I find myself in respectful disagreement with Rep. Boucher regarding subsection (b). I have seen it before and it is typically a "belt and suspenders" provision. It over-reads the provision to see it as implicit approval .... By its terms the continuing resolution does not apply in FY 2017 for ANY of its terms. This merely reiterates the point. Put another way, nothing in subsection (b) prevent the Appropriations committee from restating subsection (a) in next year's appropriations bill. It may choose to do so, or it may not. Subsection (b) of this year's bill is IMHO an irrelevancy -- it certainly can't prevent a continuation of the rider if it is included in the bill next year. All of which is a long way of saying "we shall see." Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Gregory, Holly [mailto:holly.gregory@sidley.com] Sent: Wednesday, December 16, 2015 2:45 PM To: Accountability Cross Community <accountability-cross-community@icann.org> Cc: Sidley ICANN CCWG <sidleyicannccwg@sidley.com>; ICANN@adlercolvin.com Subject: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act I thought you might be interested in the attached from Sidley partner Rick Boucher who served in Congress for 28 years. HOLLY J. GREGORY Partner and Co-Chair Global Corporate Governance & Executive Compensation Practice Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5853 holly.gregory@sidley.com www.sidley.com Holly and colleagues, I have pasted below the text from the agreement of the conferees resolving differences between the House and the Senate over the fiscal year 2016 budget. The NTIA is prevented by this language from relinquishing IANA contract oversight during fiscal year 2016, which ends next September 30. It's noteworthy that the language does not restrict NTIA from taking steps to put the transition in place including all activities related to NTIA review of the transition plan. The language merely prevents NTIA from terminating its oversight and completing the transition prior to next September 30. As I understand the current schedule, the transition would not be completed until that point in time in any event. 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 NTIA’s 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. RICK BOUCHER Partner Sidley Austin LLP 1501 K Street, N.W. Washington, DC 20005 +1 202 736 8290 rboucher@sidley.com www.sidley.com SIDLEY AUSTIN LLP **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. **************************************************************************************************** _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Phil, Thanks for writing this up. To catch up with today's speculation -- what will happen if ... The IANA Function head count and resources currently are well within the resources available to the NTIA, so it is not impossible that in the event of contract expiry the NTIA can end outsourcing to private contractors, or simply exercise another of its remaining extension options. My recollection of the previous transition arising from a competitive procurement -- from SRI to the ancestor of NetSol -- was that post-transition we (SRI) provided significant assistance for a period of a year to the new contractor (after all, this was "rocket science", then). I don't recall if SRI billed the USG for this assistance, but given the scope of SRI's contracts with the USG, it would have been silly not to have made the transition successful, even at a minor unrecovered cost to the Institute. What concerns me (and I don't expect this is a shared concern) the most in the "falling off the end of the contract period" scenario is the possibility of the USG abandoning property to the incumbent contractor, and third-parties, from tax crusaders to market monopolists taking this -- an improper disposal of government property -- to the courts. Eric Brunner-Williams Eugene, Oregon On 12/16/15 11:02 AM, Phil Corwin wrote:
FYI, just blogged on this...
http://www.circleid.com/posts/20151216_fy16_approp_act_extends_iana_transiti...
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. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I firmly believe it is property. And if it so, only Congress can decide what to do with it. In this, the junior Senator from Alberta is correct. And in any case, most certainly are they not just going to wash their hands off it. el -- Sent from Dr Lisse's iPad mini
On 17 Dec 2015, at 22:18, Eric Brunner-Williams <ebw@abenaki.wabanaki.net> wrote: [...]
What concerns me (and I don't expect this is a shared concern) the most in the "falling off the end of the contract period" scenario is the possibility of the USG abandoning property to the incumbent contractor, and third-parties, from tax crusaders to market monopolists taking this -- an improper disposal of government property -- to the courts.
[...]
participants (10)
-
Dr Eberhard W Lisse -
Eric Brunner-Williams -
Greg Shatan -
Gregory, Holly -
Jordan Carter -
Mueller, Milton L -
Nigel Roberts -
Paul Rosenzweig -
Phil Corwin -
Steve DelBianco