Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act
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. 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. 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. 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. If it were that simple, the resource would stay with the government and a new manager would be found. The IANA Contract was much more about finding oversight and a "home" for a private resource that started in Jon Postel's shirtpocket. 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. 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. When Congress knocks on the door, and the NTIA says "IANA? There's no IANA here. 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@gmail.com> wrote: At 08:36 PM 12/16/2015, Phil Corwin wrote:
[SNIP] Respectfully, while I have heard the âjust let the contntract expireâ scenario before I donât buy it for three reasons.  First, ICANN has been âhiredâ 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. 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 âtrtransitionâ 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 <tel:202-559-8597>202-559-8597/Direct <tel:202-559-8750>202-559-8750/Fax <tel:202-255-6172>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 appr 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 letââ¬s be ready.  From: <<mailto:accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org
on behalf of Phil Corwin <<mailto:psc@vlaw-dc.com>psc@vlaw-dc.com> Date: Wednesday, December 16, 2015 at 7:56 PM To: Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com , Jordan Carter <<mailto:jordan@internetnz.net.nz>jordan@internetnz.net.nz > Cc: Accountability Cross Community <<mailto:accountability-cross-community@icann.org> 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: <mailto:accountability-cross-community-bounces@icann.org>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 <<mailto:jordan@internetnz.net.nz>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 <<mailto:milton@gatech.edu>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 NTIAâs 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.
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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@internetnz.net.nz Sent on the run, apologies for brevity _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community@icann.org
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******************************* 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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