Thanks, Eric. Glad to have your advice about how to re-phrase that stress test. To clarify, that one was designed to ask whether/how the community can restrain ICANN from funding causes that the community believes are outside ICANN’s scope. So we're not concerned here about whether the expense was ‘lawful’. The 2010 board resolution you mention was specifically about the new gTLD program. But this stress test covers any/all ICANN expenditures, such as ICANN management’s decision last year to fund NETmundial (approx $1 million) . The NETmundial event wasn’t anticipated in the ICANN budget reviewed by the community. Nor was the funding decision put to the community for comment. So the corporation made a legal expenditure, but the community had no way to challenge or review before the money was spent. Hope that clarification helps. Steve From: Eric Brunner-Williams <ebw@abenaki.wabanaki.net<mailto:ebw@abenaki.wabanaki.net>> Date: Saturday, January 10, 2015 at 9:48 PM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>>, Thomas Rickert <rickert@anwaelte.de<mailto:rickert@anwaelte.de>>, "\"leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx> >> León Felipe Sánchez Ambía\"" <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> Cc: "ccwg-accountability4@icann.org<mailto:ccwg-accountability4@icann.org>" <ccwg-accountability4@icann.org<mailto:ccwg-accountability4@icann.org>> Subject: Business Constituency Stress Test #4 Steve, Members of the Business Constituency are aware that standard incorporation language (in California, Delaware, New York, ...) contains phrasing of the form "any lawful purpose". Members of the Business Constituency are also aware that the Corporation Board " at its March 2010 meeting in Nairobi, Kenya, passed resolutions recognizing the importance of an inclusive New gTLD Program, and requesting stakeholders to form a Working Group to develop sustainable support needy applicants for new gTLDs." Yet the language of the 4th Business Constituency "Stress Tests" [1] posits the Corporation's use of "registration fees to fund grants to developing nations or other worthy causes" and further declares this hypothetical use by the Corporation of its funds as an "expands[ion of] scope beyond its limited technical mission". In your revised language this restriction is expanded from the Corporation's recurring revenues to include its recurring revenues and its reserves. Without commenting on the rational contained in both the original and your revised language, I must ask, how can an accountability issue arise from something that (a) falls within "any lawful purpose" and (b) has been institutionalized by the Corporation as a consequence of the Board's 2010 resolution? Thanks in advance for your clarification. Eric Brunner-Williams Eugene, Oregon [1] http://bizconst.org/stresstests

Steve, Members of the Business Constituency are aware that on November 10, 2011, the Department of Commerce issued a Request for Proposal (RFP) SA1301-12-RP-IANA for a new IANA functions contract with a deadline of December 19, 2011. Members of the Business Constituency are also aware that the government reserved the right to cancel any solicitation that did not meet the requirements _requested_by_the_global_community_ (emphasis added). Members of the Business Constituency are also aware that the government canceled this RFP because no proposals were received that met the requirements requested. Members of the Business Constituency are also aware that the only proposal received by the government for that RFP was the proposal submitted by the Corporation. Could you clarify why the Business Constituency believes that the government might "choose to terminate the Affirmation of Commitments", apparently an expression of the requirements requested by the global community? Similarly, you clarify why the Business Constituency believes that the Corporation might "choose to terminate the Affirmation of Commitments", again, apparently an expression of the requirements requested by the global community? Thanks in advance for the clarifications. Eric Brunner-Williams Eugene, Oregon

Steve, At some point in this exercise we must assign probabilities for contingencies, as well as for their hypothetical consequences. Would you be so kind as to convey the Business Constituency's assigned probability for: 1. termination of the AoC between the USG and the incumbent contractor, by the USG, while leaving the IANA Functions contract otherwise unchanged? 2. termination of the AoC between the USG and the Corporation, by the Corporation, while retaining the IANA Functions contract otherwise unchanged? Sincerely, Eric Brunner-Williams Eugene, Oregon On 1/11/15 12:27 PM, Steve DelBianco wrote:

Eric — I think we have a fundamental disconnect on the meaning and purpose of stress tests. You keep asking about past events, or about why we believe a scenario WOULD happen.

But the purpose of scenarios/stress tests is to design plausible situations that help us test accountability mechanisms we have now or are proposing to create. Stress tests are _not_ predictive. We do _not_ need to justify a scenario, or show why it is likely to happen.

Nor do we want to be preoccupied with past events. Indeed, the benefit of doing future scenarios is that we avoid fighting over our differing interpretations of past events.

As a software guy, you need more than high-level principles to develop an application. Programming requires anticipating scenarios where users don't follow the expected routine. For non-programmers, here's an analogy: It's a good principle to practice safe driving in winter weather. It's a scenario to prepare for and respond to a specific situation, such as having your car spin sideways on a snow-covered road.

Steve

From: Eric Brunner-Williams <ebw@abenaki.wabanaki.net <mailto:ebw@abenaki.wabanaki.net>> Date: Sunday, January 11, 2015 at 3:13 PM To: Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>>, Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>>, Thomas Rickert <rickert@anwaelte.de <mailto:rickert@anwaelte.de>>, "\"leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> >> León Felipe Sánchez Ambía\"" <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> Cc: "ccwg-accountability4@icann.org <mailto:ccwg-accountability4@icann.org>" <ccwg-accountability4@icann.org <mailto:ccwg-accountability4@icann.org>> Subject: Business Constituency Stress Test #1

Steve,

Members of the Business Constituency are aware that on November 10, 2011, the Department of Commerce issued a Request for Proposal (RFP) SA1301-12-RP-IANA for a new IANA functions contract with a deadline of December 19, 2011.

Members of the Business Constituency are also aware that the government reserved the right to cancel any solicitation that did not meet the requirements _requested_by_the_global_community_ (emphasis added).

Members of the Business Constituency are also aware that the government canceled this RFP because no proposals were received that met the requirements requested.

Members of the Business Constituency are also aware that the only proposal received by the government for that RFP was the proposal submitted by the Corporation.

Could you clarify why the Business Constituency believes that the government might "choose to terminate the Affirmation of Commitments", apparently an expression of the requirements requested by the global community?

Similarly, you clarify why the Business Constituency believes that the Corporation might "choose to terminate the Affirmation of Commitments", again, apparently an expression of the requirements requested by the global community?

Thanks in advance for the clarifications.

Eric Brunner-Williams Eugene, Oregon

Eric Brunner-Williams wrote:

Would you be so kind as to convey the Business Constituency's assigned probability for:

1. termination of the AoC between the USG and the incumbent contractor, by the USG, while leaving the IANA Functions contract otherwise unchanged?

2. termination of the AoC between the USG and the Corporation, by the Corporation, while retaining the IANA Functions contract otherwise unchanged?

On 12/01/2015 01:59, Steve DelBianco wrote:

Eric — there is no need to assign probabilities for contingencies or for consequences. I refer you to the charter for our CCWG <https://community.icann.org/display/acctcrosscomm/Charter>, regarding scenarios:

That's fair enough, but in this case I think Eric's question prompts a useful thought. The explicitly announced intention of the NTIA is to transition the USG's historic role in stewardship of the DNS to the community. At the same time, the clear expectation of many governments and others is that transition should bring about a situation where the US no longer has a privileged relationship with ICANN, and especially no special ability to set requirements and enforce them. The AoC is part of the NTIA's historic stewardship role. I am sure that many people will also regard it as an example of the privileged relationship USG has that they wish to see ended. Not necessarily because they disagree with its content, but because they object to its form. So I would regard it as entirely plausible and, sooner or later, quite likely that either ICANN or the USG might terminate the AoC. More likely, both together will do so by agreement. The reason for terminating would be that it is a mechanism that belonged to the era of USG stewardship. Accordingly, insofar as the AoC contains items relevant to accountability, it is the responsibility of this CCWG to identify them and propose how they may be continued or replaced in a post-NTIA world. Listing this as a "contingency" is, to my mind, just a convenient way of ensuring it is on our agenda. The thought that Eric's question prompts is that maybe this discloses a flaw in our criteria for the WS1/WS2 distinction. WS1 is for items that must be dealt with (implemented, or firmly committed) prior to or as part of transition. We have been assuming that this just means those things which are necessarily to give assurance that the rest of the improvements can be implemented later. When we consider the AoC requirements relevant to accountability (and also requirements of the IANA functions contract that are relevant to ICANN accountability beyond IANA) it is immediately apparent that it is an error to assume we need only consider improvements. There are existing mechanisms for accountability as well. Surely, it should be a precondition for transition to ensure that existing accountability functions are continued without interruption? Surely, it is not sufficient that we merely have in place a mechanism to re-institute them later? If this is so, then the criteria for WS1 ought to accomodate that. I shall therefore also forward this message to Area 2. Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

Malcolm, To repeat: standard incorporation language (in California, Delaware, New York, ...) contains phrasing of the form "any lawful purpose". and, To paraphrase: the Corporation Board initiated an effort which envisioned assistance to gTLD applicants from developing economies, an effort to which many Constituencies (though not, as far as I recall, the Business Constituency) and several Advisory Committees contributed. I've no opinion on what the Corporation may, or may not do with its capital and human assets, though I think it prudent that the Corporation make the benefits of the IANA Function extend beyond its early adopters. For reasons I'm unaware of, the Business Constituency offered repetition of the paraphrased activity as a "stress test" case that could contribute to the development of the larger CCWG-Accountability task. As the activity is lawful, and has previously been undertaken by the Corporation with the active support of most of the community, I'm at a loss how Business Constituency Stress Test #4, original and first restatement forms, could be informative. I understand your comment about writing restrictive Bylaws, but the task of WS4 is to find contingencies or scenarios that make the larger CCWG-Accountability contributors aware of areas in the existing, or hypothetical accounting mechanisms, that need improvement, not writing Bylaws. Sincerely, Eric Brunner-Williams Eugene, Oregon On 1/11/15 1:23 PM, Malcolm Hutty wrote:

Eric,

Excuse me for intervening in what reads like a back-and-forth with Steve, but if I understand your message below correctly then I would be worried by what it implies.

Are you saying that ICANN can properly engage in "any lawful purpose"? And that to those ends, it may employee registrations fees to "fund grants to developing nations or other worthy causes"?

I am no lawyer, but this strikes me as going considerably beyond the mandate set out in the existing bylaws, namely "to coordinate, at the overall level, the global Internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the Internet's unique identifier systems"

Does that fundamental mandate not legally constrain ICANN's scope?

If ICANN is indeed currently legally permitted to range as widely as you seem to be implying, I would suggest that the bylaws need to be strengthened considerably so as to prevent that, and keep ICANN within the narrow technical function that I believe the community intends.

If the ICANN Board is legally capable of sending the company in pursuit of "any lawful purpose", and applying its funds to achieve those ends, then it is very likely that sooner or later it will engage in activities that lie very far from commanding a community consensus. Would the community be capable of restrain a Board set upon such a path? If not, I would say that that would constitute a serious failure of accountability.

So, if I have misunderstood you, then I don't understand your challenge to the BC stress tests, which would appear valid. If I understand you correctly, my worry would be that the BC tests, far from being redundant, are actually too narrowly drawn.

Kind Regards,

Malcolm Hutty.

On 2015-01-11 02:48, Eric Brunner-Williams wrote:

...

Steve,

Members of the Business Constituency are aware that standard incorporation language (in California, Delaware, New York, ...) contains phrasing of the form "any lawful purpose".

Members of the Business Constituency are also aware that the Corporation Board " at its March 2010 meeting in Nairobi, Kenya, passed resolutions recognizing the importance of an inclusive New gTLD Program, and requesting stakeholders to form a Working Group to develop sustainable support needy applicants for new gTLDs."

Yet the language of the 4th Business Constituency "Stress Tests" [1] posits the Corporation's use of "registration fees to fund grants to developing nations or other worthy causes" and further declares this hypothetical use by the Corporation of its funds as an "expands[ion of] scope beyond its limited technical mission".

In your revised language this restriction is expanded from the Corporation's recurring revenues to include its recurring revenues and its reserves.

Without commenting on the rational contained in both the original and your revised language, I must ask, how can an accountability issue arise from something that (a) falls within "any lawful purpose" and (b) has been institutionalized by the Corporation as a consequence of the Board's 2010 resolution?

Thanks in advance for your clarification.

Eric Brunner-Williams Eugene, Oregon

[1] http://bizconst.org/stresstests

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Dear All, Good Question and good path to further pursue the matter. Regards Kavouss 2015-01-11 18:52 GMT+01:00 Eric Brunner-Williams <ebw@abenaki.wabanaki.net>:

Steve,

Members of the Business Constituency are aware that personal jurisdiction* would allow claims against the Corporation brought in state and federal court, when successful, to be remedied through recourse to the Corporation's presence in the United States.

Therefore, in positing a "no legal redress" stress test the Business Constituency is first presupposing that the Corporation's assets, including its principal source of recurring revenues, the .com registry, exist outside the jurisdiction of the United States.

Could you clarify this please?

Thanks in advance,

Eric Brunner-Williams Eugene, Oregon

* For WS4 contributors unfamiliar with civil procedure in the United States, the legal issue is whether the successor to the Corporation, as hypothesized by the Business Constituency, meets the "minimal contacts" test. See Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), and more generally, International Shoe v. Washington, 366 U.S. 310 (1945). _______________________________________________ Ccwg-accountability4 mailing list Ccwg-accountability4@icann.org https://mm.icann.org/mailman/listinfo/ccwg-accountability4