January 2015 - CWG-Stewardship

Revised Scoping Document for Legal Advice
by Greg Shatan Jan. 31, 2015

Jan. 31, 2015

All: Attached is a revised "scoping document" for the request for legal advice. We need to finalize this document no later than Thursday's call of the CWG. While we could spend more time working on the document, it is more important to get access to legal counsel than to wordsmith this document. I have also uploaded this as a new Google Doc: https://docs.google.com/document/d/1EUtXShskfHF6DRyVwTnAMG3eQ0DcFMca4Eovrwk… Please make any suggested changes in the new Google Doc. Greg

13 37

CWG Timetable - Best Case Estimate (RESEND with updated attachment)
by Jonathan Robinson Jan. 31, 2015

Jan. 31, 2015

Dear Alissa, ICG Vice Chairs & Colleages, Thank-you for this note. We are pleased to be able to now respond in some more detail. Following our collective recognition that the CWG would not be able to respond with a proposal in time to meet the original planned submission of 31 January 2015, we have continued to work hard at making progress. This has involved many areas of concurrent work including re-evaluating the work required to complete a proposal and seeking to clearly understand the key dependencies. In this regard, we would like to draw your attention to a three key points: 1. The number and diversity of participants in the CWG's work necessarily mean that it is time-consuming and complex to take account of these inputs. 2. The number of dependencies which impact the timeline of the CWG's work, not all of which can be effectively or completely managed by ourselves. 3. The inter-relationship with the work of the CCWG on Accountability and the necessary inter-dependence of the work of the CWG and the CCWG. Recognising the above, we have constructed a timeline which seeks to provide a Best Case for the production of a proposal from the CWG. This Best Case seeks to predict the path to production of a final proposal which can be signed off by the chartering organisations and moreover, is correlated with the work of the CCWG on Accountability. This Best Case is includes key areas of work (separated into specific work streams), the use of high intensity periods of work and the potential use of an in person / face-to-face meeting of the CWG. It also highlights where there are key risks to the timetable and the consequent target date. These risks are represented by triangles on the diagram. They include but are not limited to: A. Lack of consensus within the CWG around a specific proposal B. Issues around the duration to acquire legal advice or the specific content of any such advice B. The willingness or ability of the chartering organisations to support the outcome of the work of the CWG Rest assured, we have every intention of producing a proposal, which has the support of the CWG members and the chartering organisations, in a timely fashion and will make best efforts to do so. However, we feel strongly that we need to set expectations about the current timetable and the implicit target it contains in that it contains identified risks and therefore may not be achievable. We trust that this is an effective update and are committed to continuing to work towards a well-supported proposal as well as to keeping you informed of and engaged in our progress to that end. Thank-you for your active involvement and appreciation of our task. Sincerely, Jonathan Robinson & Lise Fuhr Attachment: An representation of the Best Case timetable of work for the CWG correlated with our current understanding of the work of the CWG and with the current timetable of the ICG -----Original Message----- From: Alissa Cooper [mailto:alissa@cooperw.in] Sent: 16 January 2015 23:16 To: cwg-stewardship(a)icann.org Subject: [CWG-Stewardship] Request from ICG Dear CWG, The ICG has been following the developments in all of the operational communities, including the naming community. We have noted some discussions about the possibility that the CWG might require additional time to complete its response to the ICG RFP beyond its original planned submission date of 30 January 2015. In this regard, the ICG would appreciate receiving the CWG's estimated revised completion date, taking into account appropriate time for community consultation. Please communicate this to the ICG as soon as possible but not later than 31 January 2015. It would also be helpful for you to indicate what you expect the CWGs major challenges to be to complete your work in a timely fashion and whether ICG coordination can be of assistance. We appreciate the CWGs continued diligence in working towards target completion dates and we expect to stay in close contact concerning the groups progress until its work is complete. Thanks, Alissa Cooper on behalf of the ICG _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship(a)icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

5 10

Notes, Recordings, Transcript RFP3 - 30 January 14:00 UTC
by Brenda Brewer Jan. 30, 2015

Jan. 30, 2015

Dear all, The notes, recordings and transcripts for the RFP3 on 30 January are available here: https://community.icann.org/pages/viewpage.action?pageId=52232278 Action Items Request/Action: ccTLD members and participants CWG to come up with a consistent position on IAP, re it scope, mandate, Grounds for Appeal Notes Roll Call Seun Audio only 1. IAP discussion * Basic agreements section: First section document as presented * Note: delegation - re-delegation ccTLD sensitive area. Specifics are outside scope of this WG. Agreed by ccTLD members and participants on the CWG * Martin Boyle (MB): How could an IAP without proper understanding of national situation, could make a sound decision. Brings in third party. Important part is bringing people together, to support the final outcome of the process. * If no substantial support for steps in the process, could be -> IAP role: was process followed and was documentation available * Paul Kane: a gTLD has a contract, appeal process may be needed, to check whether contract has been applied properly. * For ccTLD this is different: diverse of community, no relation with ICANN. * GS, Appealing decision of court in a jurisdictions is out of scope of IAP. * PK: Appeal process may make process complicated * Alan Greenberg: ccTLDs present at the meeting suggested IAP. Topic IAP in delegation and re-delegation of ccTLD matters, not to be discussed in this group. * Staffan Jonson: Diversity of ccTLDs , brings complexity. IANA Function operator should not get involved in national disputes * MB: Could see a role for IAP, but not as evolved in the discussion. This role to be limited to process issues * Other case where Registry makes a mistake, is potentially re-delegated may want to appeal * Jonathan Robinson: Keep trail simple an delimited to IANA Function, where after the CCWG may step in. Request/Action: ccTLD members and participants CWG to come up with a consistent position on IAP, re it scope, mandate, Grounds for Appeal GNSO/gTLD related IAP Should actual decision be under IAP, or limited to question that process is followed AG: Remit of CWG should point to applicable approved policies. Re-delegation done under contract. Contracts include an arbitration clause. More important to focus on first point AG: Review process of process is around Board decisions. Re-delegation gTLD ruled by contract. Main point: If IAP was introduced mistakenly, allow it to be withdrawn. Suggestion GS: further need, scope of IAP among gTLD related part of CWG, in particular Grounds for appeal Section Key Issues and Open Questions No Comments on list of issues. Questions are re-arranging issues discussed previous section Ground for Appeal No Comments on points raised in paper Standing: who can appeal Jonathan Robinson: survey result , reflect that survey was done in a vacuum. The document is more fleshed out Binding Nature of decision Seems strongly supported according to survey Structure and Process Greg Shatan: Setting up substantive rules is difficult (based on experience new gTLD process). Quality of substantive rules, determines consistency of outcome. Existence of IAP No comments 2. Alternative "external Trust" Model * GS: Presentation Alternative John Poole document * GS Summary: replacement of Contract Co by 'Trust". Board of Trustee <- MRT * AG: Do not understand concept of incorporating Board of Trustees. * John Poole: no need to be incorporated, but may want to in order to avoid personal liabilities of Board of Trustee members. Reference to court case * (America's Cup) , illuminating in international context. It is a viable option. * John Poole , viewpoint registrant: interpretation of NTIA announcement. 1. historic stewards role, external counter part of ICANN, external role RZM, authorization. NTIA question, come up with proposal to replace NTIA role * Internal solution will abolish role of NTIA * Contract Co. will expand role * Look at how role of NTIA can be replaced. Stress Test: what is worst scenario if take away external accountability. What will happen if ICANN becomes insolvent as a result of court judgement? Avri Doria: Notion of association could be incorporated. The delegates could be on the Board of Trustee. Notion of association being incorporated. Appreciation of model AG: Rules around Trust are enforceable by court. Does not understand difference between "internal" and external" trust GS: "external trust": MS will contract with ICANN to perform IANA Function "internal" trust , no contract in place AG: in Auda proposal ( internal trust). Guardian , same role as "board of trustee" in external trust model -> MRT John Poole: CSC, MRT, IAP all could be moved internal, or external What is only replaced is role of NTIA, through external trust. Relationships do not change, Terms of Trust rule the board of trustees and relation ruled through the trust, under jurisdiction of state trust is set-up. Final remarks: large parallel between MRT and Board of Trustees (external). Next call: RFP 3 21.00 UTC Monday 02 Feb (Final call before Singapore) GS: suggestions how to use this call? *

1 0

CWG Timetable - Best Case Estimate
by Jonathan Robinson Jan. 30, 2015

Jan. 30, 2015

Dear Alissa, ICG Vice Chairs & Colleages, Thank-you for this note. We are pleased to be able to now respond in some more detail. Following our collective recognition that the CWG would not be able to respond with a proposal in time to meet the original planned submission of 31 January 2015, we have continued to work hard at making progress. This has involved many areas of concurrent work including re-evaluating the work required to complete a proposal and seeking to clearly understand the key dependencies. In this regard, we would like to draw your attention to a three key points: 1. The number and diversity of participants in the CWG's work necessarily mean that it is time-consuming and complex to take account of these inputs. 2. The number of dependencies which impact the timeline of the CWG's work, not all of which can be effectively or completely managed by ourselves. 3. The inter-relationship with the work of the CCWG on Accountability and the necessary inter-dependence of the work of the CWG and the CCWG. Recognising the above, we have constructed a timeline which seeks to provide a Best Case for the production of a proposal from the CWG. This Best Case seeks to predict the path to production of a final proposal which can be signed off by the chartering organisations and moreover, is correlated with the work of the CCWG on Accountability. This Best Case is includes key areas of work (separated into specific work streams), the use of high intensity periods of work and the potential use of an in person / face-to-face meeting of the CWG. It also highlights where there are key risks to the timetable and the consequent target date. These risks are represented by triangles on the diagram. They include but are not limited to: A. Lack of consensus within the CWG around a specific proposal B. Issues around the duration to acquire legal advice or the specific content of any such advice B. The willingness or ability of the chartering organisations to support the outcome of the work of the CWG Rest assured, we have every intention of producing a proposal, which has the support of the CWG members and the chartering organisations, in a timely fashion and will make best efforts to do so. However, we feel strongly that we need to set expectations about the current timetable and the implicit target it contains in that it contains identified risks and therefore may not be achievable. We trust that this is an effective update and are committed to continuing to work towards a well-supported proposal as well as to keeping you informed of and engaged in our progress to that end. Thank-you for your active involvement and appreciation of our task. Sincerely, Jonathan Robinson & Lise Fuhr Attachment: An representation of the Best Case timetable of work for the CWG correlated with our current understanding of the work of the CWG and with the current timetable of the ICG -----Original Message----- From: Alissa Cooper [mailto:alissa@cooperw.in] Sent: 16 January 2015 23:16 To: cwg-stewardship(a)icann.org Subject: [CWG-Stewardship] Request from ICG Dear CWG, The ICG has been following the developments in all of the operational communities, including the naming community. We have noted some discussions about the possibility that the CWG might require additional time to complete its response to the ICG RFP beyond its original planned submission date of 30 January 2015. In this regard, the ICG would appreciate receiving the CWG's estimated revised completion date, taking into account appropriate time for community consultation. Please communicate this to the ICG as soon as possible but not later than 31 January 2015. It would also be helpful for you to indicate what you expect the CWGs major challenges to be to complete your work in a timely fashion and whether ICG coordination can be of assistance. We appreciate the CWGs continued diligence in working towards target completion dates and we expect to stay in close contact concerning the groups progress until its work is complete. Thanks, Alissa Cooper on behalf of the ICG _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship(a)icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

2 1

Revised CWG Timeline
by Berry Cobb Jan. 30, 2015

Jan. 30, 2015

Hi All, Please find attached the latest version of the CWG timeline as presented by Jonathan on today's CWG call. This version will also be circulated to the CCWG. Should you have any clarifying questions, please send them to the list and we will be happy to answer them. Thank you. B Berry A. Cobb Internet Corporation for Assigned Names & Numbers 720.839.5735 mail(a)berrycobb.com @berrycobb

4 4

Notes, Recordings, Transcript CWG IANA #20 - 29 January 16:00 UTC
by Brenda Brewer Jan. 29, 2015

Jan. 29, 2015

Dear all, The notes, recordings and transcripts for the CWG IANA Call #20 on 29 January are available here: https://community.icann.org/pages/viewpage.action?pageId=51416959 Action Items: * * Action: Berry to add date to timeline * Action: will send document out to list tomorrow for feedback from group by Saturday 12:00 UTC * Action: all -- suggest pointed questions for feedback from community by Saturday 12:00 UTC * Action: encourage community to bring questions to Q&A session in Singapore (+remote participation) on Thursday 12 February * Action: circulate document more widely by Monday * Action: Grace to ensure translation of progress report Notes: Welcome and Roll Call * * No one on audio-only * All action items from Meeting #19 on 22 January are complete. Status Updates * * RFP3 (Greg Shatan) -- will go over an alternative proposal (proposed by John Poole) on tomorrow's call. * RFP3b (Allan MacGillivray) -- focusing on "internal to ICANN options"; have met twice: on 24th focused on auDA proposal; on 27th looked at more generic proposal (drafted by Bernard Turcotte); awaiting feedback on what types of arrangements are possible under CA law * RFP 4 (Robert Guerra) -- received updates from RFP3 and RFP3b; looked at improvements to working methods; looking at better categorizing stress tests list and compared to work of CCWG-Acccountability subteam * RFP5 (Cheryl Langdon-Orr) -- group work is on hold * CCWG-Accountability (Avri Doria) -- not much to add beyond the Joint Statement; last meeting covered a sendond reading of WS1 items; discussions are similar between both groups * Client Committee (Greg Shatan) -- looking to engage a lawyer/law firm; client committee consits of Greg; Maarten Simon; Jonathan Robinson; Lise Fuhr. Working with ICANN Legal to establish a process; have another meeting tomorrow; this will be financially supported by ICANN (but not "blank check"); have now gone through a 3rd version of a legal scoping document; goal is to get advice on all the propositions that we have "on the table"; they may have ideas and contributions of their own Timeline * * Came to our original timeline in response to ICG RFP. Worked very hard to meet the original deadline. * Attempted to craft a new timeline, including key dependencies such as the work of the CCWG-Accountability * Supported by staff (Berry Cobb) who are coordinating with CCWG-Accountability * This is an "aggressive" or "best case": there are some risks to the timeline including 21-day public comment period being sufficient time * Possibility of GAC needing a special F2F meeting to make a decision on the proposal * CWG and ICG Chairs have regular coordination calls * Once shared with CWG-Stewardship today, the timeline should be public Action: Berry to add date to timeline Plan for ICANN 52 * * Discussion document/progress report -- it's a summary of what we've done along with a description of 3 proposals currently being considered; max 10-12 pages * Slide Deck * Pre-Singapore webinars on 3 February Action: will send document out to list tomorrow for feedback from group by Saturday 12:00 UTC Action: all -- suggest pointed questions for feedback from community by Saturday 12:00 UTC Action: circulate document more widely by Monday Action: Grace to ensure translation of progress report AOB * Questions by Larry Strickling (Link to speech: <http://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-st… rence-1272015> http://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-st… ence-1272015) * Donna Austin: perhaps NTIA is not comfortable with the road we are going down * Would be good to try and work as effectively and efficiently as we can (not all about working hard) * Next meeting: Wednesday 11 February at 9:15 - 11:15 UTC (during ICANN 52 meeting)

1 0

Updated Legal Scoping Document (Version 3)
by John Poole Jan. 29, 2015

Jan. 29, 2015

*"We support a process where all ideas are welcome and where participants are able to test fully all transition options."--Larry Strickling, NTIA, January 27, 2015* Dear Greg* et al:* I would appreciate the courtesy of a reply or response to my email yesterday concerning Legal Scoping Document (Version 3). Best regards, John Poole

2 2

US Congress shines spotlight on Internet management system
by Robert Guerra Jan. 28, 2015

Jan. 28, 2015

Published in today’s edition (of the Washington, DC publication) “The Hill” is the following article that might be of interest. Republicans shine spotlight on Internet management system http://thehill.com/policy/technology/230914-republicans-shine-spotlight-on-… By Mario Trujillo - 01/27/15 04:48 PM EST Two Republican senators are hoping to shine a spotlight on the Commerce Department’s moves to hand off oversight of the system governing Internet addresses. GOP Sens. Orrin Hatch (Utah) and Roy Blunt (Mo.) introduced a resolution Tuesday that would designate the week of Feb. 8 as Internet Governance Awareness Week, which would coincide with a meeting in Singapore on the topic. [snipped]

1 0

Notes, Recordings, Transcript RFP 4 28 January 14:00 UTC
by Brenda Brewer Jan. 28, 2015

Jan. 28, 2015

Dear all, The notes, recordings and transcripts for the CWG IANA Call on 22 January are available here: https://community.icann.org/pages/viewpage.action?pageId=51416935 Actions Action SIVA: review document CCWG and merge with documents of this group. Action Siva: Group /merge the tests/scenario's identified in similar way as WA 4 CCWG list. * Need to check whether scenario relevant for transition.Include in document , with qualification, important , normal, not relevant in this context. Action all: request if participants see a need to meet, if so , then use Doodle poll to set time. * Question: is there need for meeting before Singapore by this group? Response need on the list by Friday 30 January 2015. 16.00 UTC. Action staff : try to arrange meeting with BRC to seek information from them on risks already identified, and possibly relevant for RFP 4 group Notes RFP 4 group call # 6 CWG Stewardship Transition 28 January 2015, 14.00-16.00 UTC 0. welcome/introduction. Siva & Seun audio only Assess work has been done to date, get updates, plan moving forward 1. review of tasks/minutes from last call * Update Siva on document on stress document and updates received: * To date no participation on stress test document. Members are requested to have alook at the document. 2. review/updates from sub-workings groups on timeline(s), stress tests * CCWG Accountability has been doing work on stress test and scenario's/ Suggestion to look at the work of CCWG Accountability * OCL: Notes, potential of duplicating work.. Notes a limited number of scenarios, compared with work of the CWG RFP 4. Action SIVA: review document and merge with documents of this group. Include in document , with qualification, important , normal, not relevant in this context. Based on this document, group to design a survey. Note this group: Larry Strickling asked some specific questions to CWG, and one in particlur to this group. See:: <http://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-st… rence-1272015> http://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-st… ence-1272015 Jaap: notes difference made between test for transition and those related to accountability. Further Siva list needs to be trimmed to proper risks.. Currently list is open ended.. Action Siva: Group /merge the tests/scenario's identified in similar way as WA 4 CCWG list. Need to check if relevant for transition. Question: what does it mean if a test fails? What are the metrics if doing the test/benchmark? No clear answer. This is testing organization. Suggestion: check what is meant with testing. Is checking impact on Action Staff: RFP 4 wants to have a meeting with staff/and or NTIA around meaning of tests Going forward No further comments on Larry Strickling statement Greg: Check what are causes ans outcomes. tests should be focused on IANA specific risks. OCL: Board Risk Framework Committee,(BRC) is working on list of contingencies. This list is most likely not publicly available. Assumption the list of scenario's is on list. Action staff : try to arrange meeting with BRC to seek information from them on risks already identified, and possibly relevant for RFP 4 group Update Timeline, transition time line OCL: Time line was geared against one proposal , however it this is now changing given RFP 3b now will look at two alternatives. Update RFP 3b AM RFP 3b contributes to document of CWG in preparation Singapore. The internal Option, will include two variants "Trust" option "Bylaw option" RFP 3 update: moving forward on fleshing out Contract Co option. Latest focus on structural details and functions As structural details are build out, more details could be included in set risks 3. improvements to working methods Looking for better coordination with other groups within CWG and with WA 4 of CCWG. Need to avoid silo-ed work. Question: what is best way to evolve work of this group, in conjunction with evolution of the different models. How could coordination and collaboration with others could be improve * GS: Iterative process between RFP 3 and RFP 4. Would be helpful for RFP 3 to review work of RFP 4 to inform their work: apply stress test while models are developed. * Vice versa also applies. Update stress test, when tests are applied to models. * Actively compare risk scenario's developed by different groups: BRC, CCWG, CWG and others * RG: To assist Feed-back of this group to RFP 3, what are changes going forward. * OCL: Raises concern that RFP 3b has reached standstill until Singapore awaiting Legal consideration. Risk of moving forward by this, without a linkage. * GS: notes legal advice is limited, should not be preclude to work in parallel on developing tests. * Try to work in parallel, and improve coordination to avoid wasting efforts. 4. Planning for ICANN Singapore meeting * Possible meetings with others. Suggestion to be send to list * Action all: request if participants see a need to meet, if so , then use Doodle poll to set time. * Question: is there need for meeting before Singapore by this group? Response need on the list by Friday 30 January 2015. 16.00 UTC. 5. Other items No comments

3 2

Subject: Updated Legal Scoping Document (Version 3)
by John Poole Jan. 28, 2015

Jan. 28, 2015

Dear Greg *et al*: *I very much object to the Legal Scoping Document (Version 3)* in that it confuses the question I asked to be included (and was the first to ever raise, to my knowledge, in this whole process--see my comment to the proposal draft in December): the idea, in the context of Contract Co, of a Trust and Board of Trustees to replace the Stewardship role played by NTIA. Draft 3 now includes parts of my question mixed up with an internal solution, proposed lately, to somehow make ICANN a trustee. That is not what I asked. The Legal Scoping Document (Version 3) as now drafted, is confusing and misleading as to the two separate sets of issues being raised. Please separate out my question, you may add it at the end of the Legal Scoping Document: "Could, or should, Contract Co. take the form of a Trust established under American law, registered with a state court (e.g., California or New York) [which ensures that the terms of the Trust will at all times in the future be met, see: http://caselaw.findlaw.com/ny-court-of-appeals/1418851.html ], the Trust to have a Board of Trustees (incorporated in the same state the Trust is registered), selected from, and representing, the global multistakeholder community, and the Trust receiving an assignment and/or conveyance from the US government, Department of Commerce (NTIA), of all the US government's rights and duties included within its Stewardship role over the Internet and DNS, under existing contracts with ICANN, and Versign, or otherwise. Further, that the Trust have as its primary purpose and duty, to ensure the continuous operation of a free, open, secure, and stable global internet DNS, including the Internet Root Zone, by the selection of an IANA functions operator (presently ICANN), and Internet Root Zone maintainer (presently Verisign), each for a term of years (subject to termination for cause), and such other terms, conditions, and covenants necessary or convenient (such as limitation of registration/renewal fees charged by a market-dominant gTLD registry operator), in order to carry out the purpose of the Trust and the duty of the Trustees thereof to act at all times in the wider public interest of the global multistakeholder community." I do appreciate all the work you and others are doing for the CWG, but since, apparently, the choice of, and all communication thereafter with the yet-to-be-retained independent legal counsel will now be controlled by, and filtered through, a self-appointed Committee of Four - Jonathan Robinson, Lise Fuhr, Maarten Simon and you - I do not want independent legal counsel confused, or to misunderstand the legal issue I have raised on behalf of the global multistakeholder community. To illustrate, in regard to the Verisign .COM registry operator agreement, there are actually two agreements - one agreement is between ICANN and Verisign that grants Verisign, in effect, a right in perpetuity to operate the market-dominant .COM registry with no limitation on the registration and renewal fees that Verisign can charge registrants; the other agreement is between Verisign and NTIA that caps, or limits, the registration and renewal fees Verisign can charge registrants of .COM domain names. Therefore, idea that ICANN can fulfill the stewardship role over the DNS played by NTIA is ludicrous based on ICANN's own track record. Even ICANN's own original Board Chairman, Esther Dyson, has lost faith in ICANN's ability to operate in the public interest, see: http://www.technologyreview.com/review/428911/icanns-boondoggle/ Best regards, John Poole

1 0