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CWG - Public Comment summary for Wednesday December 3rd
by Bernard Turcotte Dec. 3, 2014

Dec. 3, 2014

All, This will be part of a daily log of public comments to assist us on in keeping track of the various postings. Comments on how to improve this welcome. B., For December 2nd we have the following: *Date* *From* *Summary* *20141202* *Page Howe* *Current system with NTIA is doing a good job and wants it maintained.* *20141202* * Graham Schreiber* *Garbled paste into body of comment* *20141202* * Graham Schreiber* *Refers to a US supreme court case about .com (?) involving a number of parties including ICANN and suggesting that the transition work not proceed until this is resolved.* A cumulative of these summaries is provided as an Excel file - attached. B.

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Comments on draft Section 3 and Annex
by Matthew Shears Dec. 3, 2014

Dec. 3, 2014

Hi, Some comments on the current draft: * How will non-performance related questions be escalated from the CSC? At the moment their mandate is performance issues and the proposed CSC composition lends itself more to performance than policy escalation. o No matter the liaison role of the SO ACs, I would suggest that policy issues can/should also be raised directly with the PRT. * How will the PRT be composed, how often will it meet, etc.? o Representation on the PRT should reflect but also be broader than ICANN (additional independent experts) otherwise I believe we will not have satisfied the key criteria of "support(ing) and enhanc(ing) the multistakeholder model". The PRT should meet annually to review overall IANA operator performance and any policy or other concerns. It should also be convened on an ad hoc basis to address policy or performance issues as they arise or are escalated. * Should the CSC assume the responsibilities of the current NTIA Contracting Officer? I would have through that this should reside with the PRT. (we may need further elaboration on this particular role at NTIA, etc., and where it would best sit.) * The draft has some contract duties assumed by both the PRT and CSC - is this deliberate? C.5.1., C.5.2 and C.5.3. for example. * Do we believe that the role described in the current contract (sections C.3. and C.5.3.) related to the audit of security provisions can be undertaken by CSC or the PRT? * It still remains unclear how the Contract Co could "take action" per the request of the PRT if the contracting Co. is not staffed, etc. And, does it need to be a corporation? We advice on this asap. otherwise we will have to consider another model. * Is the IANA function to have independent legal counsel (per the proposal)? And will that legal counsel role need to have a more expanded role than delegation and re-delegation issues? * Annex 3 already points to a model for contract options including up to two options to extend. I do not recall there being any consensus or agreement on the structuring of the contract or extension options and this section should be reworded accordingly - for example to state that all contract details such as length, options to extend, etc., are TBD. (I do recall that there was some sense of the room that the amended contract should remain with the current operator after the transition for a limited period of time again TDB.) * In Annex 3 there needs to be a careful reread - see below for examples: o It reads "ICANN to Provide Qualified Program Manager" and should read "Contractor....." o Why does the CSC approve contractor personnel changes? Surely it should the PRT as responsible for contracting issues? o Shouldn't the Final Report and Acceptance and Inspection be for the PRT? There seems to be some lack of clarity in the Annex as to what roles/functions are CSC or PRT? o Again C.6 and C.7 should be PRT, not CSC, issues and are identified as such in the section 3 text. Same issue with C.8 and E. Finally, I share a number of the concerns voiced on the list over the past couple of days. In particular there are many critical details yet unresolved. We may rue not addressing these now. On the issue of accountability, I am pleased to see that the Co-chairs of the two WGs are meeting and believe that we need to quickly align as best possible these two work streams. If, as is likely, the amended contract remains with ICANN for some period of time after the transition the recommendations from work stream 1 (and 2) of the Accountability WG are and remain critically important no matter what happens after the initial contract period. Matthew -- Matthew Shears Director - Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) mshears(a)cdt.org + 44 771 247 2987

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Re: [CWG-Stewardship] Workplan update from the CWG co-chairs for members and participants
by Jonathan Robinson Dec. 3, 2014

Dec. 3, 2014

Resent with Thursday 10 Dec corrected to Thursday 11 Dec. Thank-you Matthew Shears. Jonathan From: Jonathan Robinson [mailto:jrobinson@afilias.info] Sent: 03 December 2014 14:12 To: 'cwg-stewardship(a)icann.org' Cc: Lise Fuhr (lise.fuhr(a)difo.dk) Subject: Workplan update from the CWG co-chairs for members and participants Importance: High All, Please see attached for a work plan update from the CWG co-chairs for members and participants and including detail on proposed meetings and times (some of which have changed). Note: Tomorrow's meeting of the CWG (4 December 2014, 14:00 UTC) will no longer go ahead as planned. Please check the attachment for full details. Thank-you, Lise Fuhr & Jonathan Robinson

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Workplan update from the CWG co-chairs for members and participants
by Jonathan Robinson Dec. 3, 2014

Dec. 3, 2014

All, Please see attached for a work plan update from the CWG co-chairs for members and participants and including detail on proposed meetings and times (some of which have changed). Note: Tomorrow's meeting of the CWG (4 December 2014, 14:00 UTC) will no longer go ahead as planned. Please check the attachment for full details. Thank-you, Lise Fuhr & Jonathan Robinson

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My concerns with the draft proposal and an alternative option
by Alan Greenberg Dec. 3, 2014

Dec. 3, 2014

As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community. I am also quite aware that my alternative options are likely to be vehemently opposed by some. I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one. Overview Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that. Contract Co. Many of the issues surround the "entity" (as it was referred to in Frankfurt). The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT. The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014) Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not. There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later. Multistakeholder Periodic Review Team (PRT) The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity. The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly? So how this body, which is the critical keystone [http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued. A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend). Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body? Customer Standing Panel (CSC) It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??). There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members. Cost Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)? Acceptability The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN? It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government. It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either). Integratability The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead. We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative. Integrating these two approaches may be difficult. Lost Opportunity Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function. If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal. If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN. Alternative Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable. All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario). These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years. I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA. There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward. - ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts.

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Public Comment Period Opens!
by Grace Abuhamad Dec. 2, 2014

Dec. 2, 2014

Dear all, The Public Comment period is officially open! Please see: https://www.icann.org/public-comments/cwg-naming-transition-2014-12-01-en In addition, the webinars have been announced: https://www.icann.org/news/announcement-3-2014-12-01-en I will send calendar invites for the webinars to your individual addresses. Please share broadly to ensure a successful public comment. Best, Grace

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On ISOC signing the IETF MoU
by Bertrand de La Chapelle Dec. 2, 2014

Dec. 2, 2014

Greg, Thanks for your patience. I am not trying to run in circles, but believe that consensus is reached when people do understand clearly why their perceptions are wrong. I may be close to that and always am ready to be corrected, which seems to be the case here. A final question though regarding your comment: 1) *Is incorporation required to "contract"?* Given that the IETF seems to > have an MoU with ICANN (among other arrangements with other "entities"), I > would suppose that the answer is no. Can someone clarify this important > point? > GS: As pointed out before, ISOC is the signatory of the ICANN MoU. So the answer to your question is *YES, YES, A THOUSAND TIMES YES.* But when I look at the IETF-ICANN MoU and its supplemental agreement of 2013, I note that: - the IETF-ICANN MoU <https://www.icann.org/resources/unthemed-pages/ietf-icann-mou-2000-03-01-en> of 2000 was NOT signed by ISOC, as I already have mentioned, but by the IETF Chair and the IAB Chair, both non-incorporated entities - the supplemental agreement <https://iaoc.ietf.org/documents/2013-ICANN-IETF-MoU-Supplemental-Agreement-…> is signed by Elise Gerich for ICANN and Ray Pelletier as IETF Administrative Director and the organization listed for him is the IAOC. RFC 4071 <https://tools.ietf.org/html/rfc4071> describes the IASA (IETF Administrative Support Activity) of which the IETF Administrative Oversight Committee (IAOC) is a part. Section 7 of this RFC says (emphasis added): Independence: The IASA shall be *distinct from other ISOC activities*. ISOC shall support the IASA through the mechanisms specified in this document and its successors. The hypothesis of moving IASA outside of ISOC is even explicitly envisaged (emphasis added): Removability: While there is no current plan to transfer the legal and financial home of the IASA to another corporation, the IASA shall be structured to enable a clean transition *in the event that the IETF community decides that such a transition is required* and documents its consensus in a formal document (currently called a BCP). In such a case, the IAOC shall give ISOC a minimum of six months' notice before the transition formally occurs. Am I missing something here or is the statement that ISOC is signing these agreements not entirely accurate? Given the importance of this argument in your position, could you please elaborate, if I may abuse your time. And once again, thanks for your patience. I am sure that these clarifications help several others come along towards common understanding. Best Bertrand "*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de Saint Exupéry ("*There is no greater mission for humans than uniting humans*")BERTRAND DE LA CHAPELLEInternet & Jurisdiction Project | Directoremail bdelachapelle(a)internetjurisdiction.netemail bdelachapelle(a)gmail.comtwitter @IJurisdiction <https://twitter.com/IJurisdiction> | @bdelachapelle <https://twitter.com/bdelachapelle>mobile +33 (0)6 11 88 33 32 www.internetjurisdiction.net[image: A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS] On Mon, Dec 1, 2014 at 8:32 PM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: > Bertrand: > > I think these questions have been asked and answered several times > (including by me in a response to an earlier email), but I"ll do it > again. Responses inline. > > On Mon, Dec 1, 2014 at 11:10 AM, Bertrand de La Chapelle < > bdelachapelle(a)gmail.com> wrote: > >> Dear Greg, dear all, >> >> Two things: 1) a comment on the notion of "entity" and 2) a few key >> questions that I would like to see clearly answered to move forward >> >> *1) ON THE NOTION OF "ENTITY" AND COMMON UNDERSTANDING* >> >> In your exchange below with Holly, you mentioned two definitions of the >> term "entity". She rightly pointed there were of two types: one from a >> legal perspective and another one a more general, layman's perspective. >> >> Naturally, the first one (the legal one) focuses on incorporation, with >> mentions such as "separate existence for tax purposes". >> >> The second one, however, from the Merriam-Webster was more generic: >> >> *1 a : being >> <http://www.merriam-webster.com/dictionary/being>, existence >> <http://www.merriam-webster.com/dictionary/existence>; especially : >> independent, separate, or self-contained existence* >> *b : the existence of a thing as contrasted with its attributes* >> *2: something that has separate and distinct existence and objective or >> conceptual reality* >> *3: an organization (as a business or governmental unit) that has an >> identity separate from those of its members* >> >> >> I have a simple question: is the IETF an "entity" acccording to that >> definition, although it is not incorporated? I believe the answer is yes. >> > > GS: It is not an entity for the purpose of entering into contracts. ISOC > (which is a legal entity) enters into contracts. (IETF is an "organized > activity" of ISOC.) > >> >> As you know, the W3C, at least for a long period of time, was not >> incorporated, relying on three separate MoUs with "host" structures. (It >> may have changed since then but that was the case for several years). Isn't >> the W3C an "entity" for the purpose of the discussion we're having? >> > > GS: No. W3C is not an entity for the purpose of discussions regarding > entering into contracts. W3C is a contractual entity, created by a Joint > Agreement between the host institutions. W3C members enter into a Member > Agreement signed by all 4 host institutions. > >> >> Likewise, aren't the gNSO and the ccNSO, "organizations" (it is in their >> name) that have "an identity separate from those of (their) members", and >> "something that has a separate and distinct existence and objective or >> conceptual reality", and a "self-contained existence"? And therefore >> "entities" in light of the MW definition above? >> > > GS: They may be entities for some purposes, but not for the purpose of > entering into contracts. To the extent they are entities, that is > irrelevant to the discussion at hand. > >> >> You may have had a legal meaning in mind for the term "entity" because of >> your own background but it seems clear that in Frankfurt, several people >> clearly understood the word in its more general meaning. >> > > GS: I believe this has since been clarified. > >> >> *2) KEY QUESTIONS* >> >> In my view, the core of the discussion here can be summarized as follows: >> >> 1) *Is incorporation required to "contract"?* Given that the IETF seems >> to have an MoU with ICANN (among other arrangements with other "entities"), >> I would suppose that the answer is no. Can someone clarify this important >> point? >> > > GS: As pointed out before, ISOC is the signatory of the ICANN MoU. So > the answer to your question is *YES, YES, A THOUSAND TIMES YES.* > >> >> 2) If the answer above is indeed no, is there any practical, legal or >> other constraint that would *expressly forbid IETF, the NRO (or ASO), >> the ccNSO and the gNSO to have each an MoU* with ICANN or any other >> contractor for the IANA functions? >> > > GS: The answer above is yes, so no need to go further. (I will also > state again for the record that an MoU is a contract, and has to follow all > the rules applicable to contracts in general.) > >> >> 3) If the answer to 2) above is no, what are *the pros and cons to >> establishing instead a specific contracting Corporation*, in terms of >> simplicity, compatibility between the mechanisms for the different groups >> (parameters, numbers, names), guarantee of accountability, stability and >> security of the system. >> > > GS: The answer to 2) is either "yes" or "not applicable," so no need to go > further. > >> >> Unless these questions are clearly answered, I am afraid we will be >> running in circles and losing time. >> > > GS: I am afraid that a number of people seem to insist on running in > circles. I have been spending quite some time trying to whack them back on > track. I do not think that the group as a whole is running in this circle, > or losing time, just a few people who desperately want to find something > that doesn't exist. If it did, don't you think I would be the first person > to bring it up? > > I hope that these questions are now clearly and definitively answered. > > Greg > >> >> Thanks for the feedback. >> >> Best >> >> Bertrand >> >> >> >> "*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de >> Saint Exupéry >> ("*There is no greater mission for humans than uniting humans*")BERTRAND >> DE LA CHAPELLEInternet & Jurisdiction Project | Director >> >> On Sun, Nov 30, 2014 at 7:42 AM, Greg Shatan <gregshatanipc(a)gmail.com> >> wrote: >> >>> Holly and all: >>> >>> If we are turning to the dictionary, please consider the following: >>> >>> Entity >>> >>> *A real being; existence. An organization or being that possesses >>> separate existence for tax purposes. Examples would be corporations, >>> partnerships, estates, and trusts. The accounting entity for which >>> accounting statements are prepared may not be the same as the entity >>> defined by law.* >>> >>> Entity *includes corporation and foreign corporation; not-for-profit >>> corporation; profit and not for-profit unincorporated association;* Business >>> Trust <http://legal-dictionary.thefreedictionary.com/Business+Trust>, *estate, >>> partnership, trust, and two or more persons having a joint or common >>> economic interest; and state, U.S., and foreign governments.* >>> >>> *An existence apart, such as a corporation in relation to its >>> stockholders.* >>> >>> *Entity includes person, estate, trust, governmental unit.* >>> West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale >>> Group, Inc. All rights reserved. >>> >>> This is what I mean when I say "entity." I'll try to say "legal entity" >>> to avoid any doubt in future. But there was no doubt in my mind (or many >>> others) that when we were talking about creating an entity -- and in >>> particular, an entity that could enter into a contract -- that this is what >>> we were talking about. >>> >>> For what it's worth, the Merriam-Webster's definition that I found first >>> when searching the Internet is as follows: >>> >>> 1* a* *:* being <http://www.merriam-webster.com/dictionary/being>, >>> existence <http://www.merriam-webster.com/dictionary/existence>; >>> *especially* *:* independent, separate, or self-contained existence >>> *b* *:* the existence of a thing as contrasted with its attributes >>> 2*:* something that has separate and distinct existence and objective >>> or conceptual reality >>> 3*:* an organization (as a business or governmental unit) that has an >>> identity separate from those of its members >>> >>> Greg >>> >>> On Sat, Nov 29, 2014 at 11:16 PM, Holly Raiche < >>> h.raiche(a)internode.on.net> wrote: >>> >>>> Thank you Alan for the time and thought you have put into this. My >>>> comments, for what they are worth, interspersed. >>>> >>>> Holly >>>> >>>> On 29 Nov 2014, at 4:23 pm, Alan Greenberg <alan.greenberg(a)mcgill.ca> >>>> wrote: >>>> >>>> As I have mentioned during the F2F meeting in Frankfurt and on the >>>> most recent teleconference, I have significant problems with the proposal >>>> currently on the table. I am taking this opportunity to present my concerns >>>> in somewhat more detail, and I will also present what I believe to be a >>>> viable alternative. The ideas presented are my own, but I do know that they >>>> are largely shared by my At-Large colleagues and by some others in the >>>> community. >>>> >>>> I am also quite aware that my alternative options are likely to be >>>> vehemently opposed by some. >>>> >>>> I should also add that there are aspects of the current draft CWG >>>> proposal that I strongly support. The Independent Appeals Panel is perhaps >>>> the most important one. >>>> >>>> >>>> >>>> *Overview *Many of my concerns are due to the large number of >>>> "details" that are, as yet, unspecified. Perhaps some of my concerns will >>>> be negated once there are sufficient answers, but I have the nagging >>>> feeling that for many, there will be no viable answer. This message will >>>> necessarily be long - my apologies for that. >>>> >>>> >>>> >>>> *Contract Co. *Many of the issues surround the "entity" (as it was >>>> referred to in Frankfurt). >>>> >>>> >>>> First - using a Webster’s Dictionary (for the many Americans >>>> commenting) entity is defined as a ‘thing which has reality and >>>> distinctness’. NB: It does NOT NECESSARILY imply any corporate status. So >>>> there was a big and surprising leap from entity - which many of us >>>> supported - to some kind of corporate structure - which seems to have >>>> become a done deal in the minds of some. However, if it ‘signs a contract’, >>>> it necessarily has some legal status. And the tasks given below suggest it >>>> should. Is it too late to ask whether it is possible to have the PRT >>>> without a contract company. >>>> >>>> The draft somewhat glibly says that it will only sign the contract. But >>>> it seems to be outsourcing much of its responsibility to the >>>> Multistakeholder Periodic Review Team (PRT), and that seems problematic. >>>> Perhaps the intent is not that all of these things go to the PRT, but there >>>> does not seem to be anywhere else for the functions to go. Among the tasks >>>> that it has outsourced are consultation regarding the contents of future >>>> RFPs, RFP issuance, RFP evaluation, contract negotiation and contract >>>> enforcement. What it cannot outsource is addressing legal issues such as >>>> being sued by a bidder who failed for win the contract and other such >>>> possibilities. Whether it is possible to have such an empty company do all >>>> this remains to be demonstrated. I will deal with problems with this >>>> outsourcing under the PRT. >>>> >>>> The jurisdiction under which the company is registered has been the >>>> subject of some discussion. Clearly there are those who feel that under no >>>> conditions can it be the US. At the same time, there are some indications >>>> (such as terms in the Kelly bill) that imply that the US Government may not >>>> be willing to accept anything other than the US. Note that I understand >>>> that the Kelly bill itself may wither and die, but to quote Milton Meuller, >>>> "We should also pay attention to it because the bill provides a very good >>>> benchmark for preparing for the kind of questions that the NTIA is likely >>>> to be asked after they get a complete proposal from the ICG and begin to >>>> implement it. The Kelly bill can be considered a list of the concerns that >>>> US-based interests are going to be using to assess the final proposal. The >>>> GAO Report is equally important in this regard. Ignore them at your peril." >>>> (E-mail to the CWG-Stewardship list on 23 Nov 2014) >>>> >>>> Without details of exactly how this corporation will exist, it is >>>> impossible to assure oneself that it cannot be captured or controlled by >>>> some entity or government(s). Running IANA will be a treasured target by >>>> some countries and we do not know what lengths they would go to capture the >>>> contract. NTIA had the strength of the US (and its battleships and such) >>>> behind it. Contract Co. will not. >>>> >>>> There has been no discussion about how this entity, or any part of the >>>> overall proposal, is funded. More on this later. >>>> >>>> >>>> *Multistakeholder Periodic Review Team (PRT)* >>>> >>>> >>>> >>>> The PRT is effectively the operational arm of Contract Co. It is the >>>> entity that makes decision for Contract Co., presumably including those >>>> related to the RFP, contract negotiations, contract enforcement and much >>>> more. But by its very name, it is Periodic. It does not exist at all times >>>> and there are some in the community that have said it should be >>>> re-constituted afresh every time it is needed (perhaps like the Phoenix >>>> born from the ashes of its predecessor). I fail to understand to how it can >>>> take action on problems if it is not an ongoing entity. >>>> >>>> The description says that it is a "body" with representatives selected >>>> by the relevant bodies. Accepting that "relevant" is to be decided later, >>>> it is unclear under whose auspices this body is convened, and how we can >>>> ensure that it remains free from capture or malformation. It was suggested >>>> in Frankfurt that this body could be akin to (or even identical to) the >>>> IANA-CWG, but given that the entire concept of this elaborate >>>> infrastructure is to allow ICANN to be completely excluded from the IANA >>>> management process, presumably because it has ceased to carry out this >>>> function as well as all parties claim it is now doing, what makes us think >>>> that ICANN would take responsibility for this, or more to the point, could >>>> be trusted to do it properly? >>>> >>>> The idea behind talking about an entity rather than a corporate >>>> structure was to suggest that it is possible to have structures with >>>> functions, without those structures have an individual corporate >>>> personality. ALAC, GNSO,ccNSO, SSAC are all examples of entities that have >>>> an ongoing existence, functions, etc but do not have separate corporate >>>> identities. It can be done - indeed, is being done. >>>> >>>> >>>> So how this body, which is the critical keystone [ >>>> http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this >>>> entire superstructure depends, constituted, and funded. And how does one >>>> ensure that it is not corrupted, or captured? Or sued. >>>> >>>> This was always my concern with creating a new corporate structure. >>>> >>>> A body as large as it will have to be will require infrastructure such >>>> as a secretariat - how do we ensure that IT is not subverted (just look at >>>> all the effort that has gone into ensuring an independent ICG secretariat)? >>>> And without a corporate backing of the PRT, its members would be personally >>>> liable in the case of a lawsuit. Who would want to serve on such a group? >>>> Moreover, in an environment where the PRT is taking very significant >>>> decisions, both financial offers and personal threats would be an effective >>>> method of capture (and presumably this is all volunteer work, or at most a >>>> modest stipend). >>>> >>>> For my money, these are critical questions - which remain unanswered. >>>> >>>> >>>> Surely, the PRT, which is implicitly all powerful, would need a new >>>> oversight mechanism over it! And who oversees THAT oversight body? >>>> >>>> EXACTLY - but the same can be said of the Contract Company. Who funds >>>> it, who monitors it. And do we not then wind up with accountability issues >>>> for ICANN AND its oversight body. >>>> >>>> >>>> >>>> >>>> *Customer Standing Panel (CSC) *It is unclear exactly what this body >>>> monitors. If it is JUST service levels committed to by IANA, the >>>> composition may be ok. But if it is also responsible for ensuring that IANA >>>> is following policy, then the composition MUST reflect the >>>> multi-stakeholder body or bodies that created such policy. You cannot >>>> presume that the customers, who may have been vehemently opposed to any >>>> specific policy, will report that such a policy is not being policy. If the >>>> CSC is NOT monitoring adherence to policy, then who is? It does not seem to >>>> be covered in the proposal. During e-mail discussions, someone said it was >>>> the job of the (for the gTLD space) GNSO. But it does not have the staff or >>>> Bylaw mandate to do so, nor would it have any standing to complain to >>>> whoever it is that would attempt enforcement (the PRT??). >>>> >>>> Absolutely agree. I think the problem with the concept is the word >>>> ‘customer’; it does not encompass all those who are impacted by IANA/ICANN >>>> decisions. And agree with the comment abut the GNSO. >>>> >>>> >>>> There is reference to Liaison from ACs and SOs on the CSC. In the ICANN >>>> context, a Liaison has no power other than that of persuasion. They have no >>>> power to act if they are in disagreement with the majority of the full >>>> members. >>>> >>>> Which is why a Standing Panel based on the MSM is the better model. >>>> >>>> >>>> >>>> >>>> *Cost *Cost has been mentioned briefly above, but it is a significant >>>> issue. Aside from the costs of the infrastructure we are discussing here, >>>> there is the cost of IANA. Currently this is funded by ICANN. If ICANN were >>>> to be taken out of the picture (and the possibility of doing that is the >>>> ONLY reason for building all of this), where does the funding come from? >>>> From ICANN, out of the goodness of its heart, despite no longer having ANY >>>> control over how much money is demanded or how it is spent? By the gTLD >>>> registries, who have said they would likely fund THEIR part of the costs, >>>> but not the entire thing. By the ccTLDs who have clearly said we should not >>>> depend on them (with a few exceptions)? >>>> >>>> WELL SAID >>>> >>>> >>>> >>>> >>>> *Acceptability *The last time I heard Larry Strickling talk about the >>>> stewardship transition, he said it would only take place if sufficient >>>> controls were put in place to address ICANN messing up (i.e., in the >>>> extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of >>>> the IANA stewardship - why else would we care about ICANN accountability if >>>> ICANN were not involved. From that, my take is they envision the IANA >>>> responsibility being transferred to ICANN. The Kelly bill clearly presumes >>>> this as well - why else would it be attempting to put so many constraints >>>> on ICANN? >>>> >>>> Again, well said >>>> >>>> >>>> It is not at all clear that a proposal such as one that the CWG has put >>>> in this draft would be acceptable to the US government. >>>> >>>> I don’t think it would be either. >>>> >>>> >>>> It will certainly not be a favoured proposal from the point of view of >>>> the ICANN Board (who may not have a direct say in this but cannot be >>>> totally ignored either). >>>> >>>> >>>> >>>> *Integratability *The ICG will be tasked with integrating the CWG >>>> proposal with that of the RIRs and the IETF. Although this is clearly their >>>> job and not ours, I have always believed that one needs to look ahead to >>>> ensure that there are no impassable roadblocks ahead. >>>> >>>> We do not definitively know what those proposals will be, but >>>> indications are emerging. Both bodies seem to be happy with how ICANN is >>>> managing IANA, but both feel that in the event of any untoward action, they >>>> could move the responsibility associated with their areas somewhere else. >>>> Since in both cases, it is the same body that sets the policy that would >>>> judge it, no great complexity is involved. In ICANN's case, since the >>>> bodies that set policy in the names space are (to a large extent) an >>>> integral part of ICANN, they cannot take action against their "parent" (so >>>> to speak). Thus this cumbersome alternative. >>>> >>>> Integrating these two approaches may be difficult. >>>> >>>> >>>> >>>> *Lost Opportunity *Part of the IANA Stewardship Transition is to put >>>> in place suitable ICANN accountability and governance changes so as to >>>> ensure the continuity of the IANA function. >>>> >>>> If all of the questions posed here, and the ones raised by others are >>>> addressed, we would end up moving from a situation where an entity (the >>>> NTIA of the US government) awards the IANA contract. The contract is >>>> currently held by ICANN but in theory at some future date, it could be >>>> awarded to some other organization, removing ICANN from any operational >>>> connection to ICANN. >>>> >>>> The new situation would be where Contract Co. awards the IANA contract. >>>> The contract will initially be held by ICANN but in theory at some future >>>> date, it could be awarded to some other organization, removing ICANN from >>>> any operational connection to ICANN. >>>> >>>> Notice the parallel wording. ICANN really has no motivation to change >>>> to effect this change. And in all likelihood any change associated with >>>> this transition will be minimal. >>>> >>>> If we go down the path of the current draft CWG proposal, I believe >>>> that a major opportunity will have been lost to reform ICANN. >>>> >>>> >>>> >>>> *Alternative *Simply criticizing the current CWG draft proposal is not >>>> particularly useful without alternatives. My alternative is certain to not >>>> please some of the parties in this discussion, but I believe that it is >>>> both possible and viable. >>>> >>>> All of the complexity of the CWG draft proposal is there to cover the >>>> eventuality that ICANN suddenly or gracefully stops performing the IANA >>>> function to the satisfaction of the community. That was indeed the >>>> situation a number of years ago, and ICANN took effective action to rectify >>>> the problems (that is, the NTI did not have to yank the contract to fix the >>>> problems). At the moment all parties seem to agree that there are no >>>> significant outstanding major problems, certainly none that could justify a >>>> change in the status quo. But there is a recurrent fear of "what if". What >>>> if ICANN had the IANA responsibility in perpetuity and stopped caring. Or >>>> had a Board that deliberately and without community support took action or >>>> inaction to harm how the IANA functions are carried out (the "rogue Board >>>> scenario). >>>> >>>> These worst case alternatives are indeed possible. And since under the >>>> current ICANN Bylaws, the Board is effectively sovereign, little could be >>>> done short of changing the Board over a period of 3+ years. >>>> >>>> And this is what worries Larry Strickling - what he said publicly at >>>> the last ICANN meeting. He does want a credible answer that will satisfy >>>> his masters (including Congress) >>>> >>>> >>>> I suggest that there are ways to alter ICANN's Bylaws to allow the >>>> effective control of an out-of-control Board. These mechanisms will not be >>>> particularly appreciated by the ICANN Board, but I believe that such >>>> measures (or something similar) would be adopted if that is what is >>>> required to be granted IANA. >>>> >>>> There are a number of components that I will describe. They are not >>>> necessarily a complete or even the correct set. Putting in place a complete >>>> set of cohesive recommendations is what the Accountability CCWG is being >>>> convened for. But the existence of the following as a starting point, I >>>> believe, demonstrates that there IS a way to proceed forward. >>>> >>>> - ACs and SOs must be given the ability to recall their sitting >>>> Board member. There will be no need to await the end of the current 3-year >>>> term. >>>> - Certain classes of decision regarding IANA can only be made >>>> with (for an example) a supermajority (2/3) of the Board's maximum >>>> Bylaw-mandated membership approving the decision. Without the bulk of the >>>> AC/SO Board members, there will not be a critical mass of Board members to >>>> take such a decision. >>>> - Certain classes of decision regarding IANA may only be made >>>> after notification period and public comment. This would allow the ACs and >>>> SOs sufficient time to act to recall their Board members >>>> - It is possible that the composition of the Board might need to >>>> be slightly altered to ensure that a recall of most but not all AC/SO Board >>>> members would be effective in halting action. Or a higher threshold than >>>> supermajority might be needed. >>>> - Bylaws regarding GAC advice related to IANA might need to >>>> somewhat altered to compensate for the GAC not having sitting Board members. >>>> - Similarly, non-affiliated ccTLDs would need to be worked into >>>> the equation. >>>> - If allowed under California law, the Bylaws could be require >>>> that under certain circumstances, a Board decision could be appealed to an >>>> external body (similar to the proposal's Independent Appeal for IANA >>>> decisions) and that the decision would be binding and enforceable in courts. >>>> >>>> I don’t think this is the entire answer BUT it goes a long way towards >>>> a workable response that can dovetail nicely with what both the numbers and >>>> protocols community are coming up with. >>>> >>>> Again, that you Alan - this is a really good summary of both concerns >>>> and a very positive way forward. >>>> >>>> >>>> _______________________________________________ >>>> CWG-Stewardship mailing list >>>> CWG-Stewardship(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/cwg-stewardship >>>> >>>> >>>> >>>> _______________________________________________ >>>> CWG-Stewardship mailing list >>>> CWG-Stewardship(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/cwg-stewardship >>>> >>>> >>> >>> >>> -- >>> >>> *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* >>> >>> *666 Third Avenue **ï** New York, NY 10017-5621* >>> >>> *Direct* 212-885-9253 *| **Main* 212-949-9022 >>> >>> *Fax* 212-949-9190 *|* *Cell *917-816-6428 >>> >>> *gsshatan(a)lawabel.com <gsshatan(a)lawabel.com>* >>> >>> *ICANN-related: gregshatanipc(a)gmail.com <gregshatanipc(a)gmail.com> * >>> >>> *www.lawabel.com <http://www.lawabel.com/>* >>> >>> _______________________________________________ >>> CWG-Stewardship mailing list >>> CWG-Stewardship(a)icann.org >>> https://mm.icann.org/mailman/listinfo/cwg-stewardship >>> >>> >> > > > -- > > *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* > > *666 Third Avenue **ï** New York, NY 10017-5621* > > *Direct* 212-885-9253 *| **Main* 212-949-9022 > > *Fax* 212-949-9190 *|* *Cell *917-816-6428 > > *gsshatan(a)lawabel.com <gsshatan(a)lawabel.com>* > > *ICANN-related: gregshatanipc(a)gmail.com <gregshatanipc(a)gmail.com> * > > *www.lawabel.com <http://www.lawabel.com/>* >

4 3

On enforceability
by Bertrand de La Chapelle Dec. 2, 2014

Dec. 2, 2014

Thanks James, I think we are moving forward in terms of clarification of the issues at stake. And I do believe that clarity was a valuable use of our time. It took less than a day of my prodding to reach this stage, which I think is useful for many people beyond me if I judge by the previous lengthy exchanges. So: 1) Contrary to what was strongly asserted, there ARE cases of agreements signed by non-incorporated entities in our Internet environment. But you rightly say that this is rather a question of legal enforceability, which arguably is only achievable with contracts among incorporated entities. Point well taken and it is a useful distinction. But you seem to anticipate that enforceability would be achieved mostly through court decisions (in whatever jurisdiction might be chosen). 2) However, if the issue of enforceability is to ensure the *respect of the various operational conditions and performance levels* by the IANA Operator, the mechanisms might be different. In the current architecture, these conditions are set by the IANA contract, which is a contract between ICANN and NTIA. Would the "customers" of the IANA functions be eligible to sue ICANN to force it to respect these conditions? And even if it is the case, could a court do more than impose a financial penalty? The remedies would mostly be found through internal pressure from within the community. More importantly, would NTIA go to court to have these performance conditions respected? Or would it rather issue strong private, then public warning to the Operator, before threatening to activate the clause of cancellation of the contract and open a re-bidding? I believe rather the latter. This accountability or enforceability is therefore more contained in the regime mechanisms themselves than provided through external courts. Legal enforceability on that first topic might be less of a criteria than we think. Authority and balance of power might matter more. Whomever attributes the mandate (and has the capacity to rescind it) is probably the real enforcer. 3) If the issue of enforceability is to *oblige the current Operator to accept a change of Operator* after a re-bidding, this is a different issue. If we follow the Contract Co. route, any contract will have to contain a commitment to accept a decision of re-attribution to another Operator. However, I suppose that even a mere unilateral declaration from the Operator that it would abide by the decisions (including reattribution through appropriate procedures) of whatever entity is deemed in charge would be, by itself, enforceable against it in the court of its jurisdiction, if it were to relent. It is clear that for accountability but also operational reasons, the Operator must be an incorporated entity. But a mutual affirmation of Commitments even with a non-incorporated entity containing such a commitment by the Operator would probably be enforceable. After all, ICANN is bound by its Bylaws and all its internal decisions. It could as well be bound by such a commitment, and so would any potential replacement. There will be a community-driven process of re-bidding (or at minimum a threat of it) and if there is a decision to re-allocate, the Operator will have lost serious credibility. The IANA functions represent a global public trust mission. The Operator must have the trust of the community, this is not only a matter of legal enforceability. ______________ Generally speaking, we are confronted with the very difficult task of putting in place something that is global. My gut reluctance - and I guess that of several others - is that the creation of a Contracting Co. brings anew the anchoring into a specific jurisdiction, not to mention issues of accountability of its own governance structure that are a direct replica of the ones ICANN is facing. The moment we envisage a new structure with any sort of Board, all the same problems we have within ICANN arise, as Greg himself recognized in passing in his response to Alan. I believe the power should rest with the groups that form the different parts of the community, as much as possible. Best Bertrand "*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de Saint Exupéry ("*There is no greater mission for humans than uniting humans*")BERTRAND DE LA CHAPELLEInternet & Jurisdiction Project | Directoremail bdelachapelle(a)internetjurisdiction.netemail bdelachapelle(a)gmail.comtwitter @IJurisdiction <https://twitter.com/IJurisdiction> | @bdelachapelle <https://twitter.com/bdelachapelle>mobile +33 (0)6 11 88 33 32 www.internetjurisdiction.net[image: A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS] On Mon, Dec 1, 2014 at 9:58 PM, James Gannon <james(a)cyberinvasion.net> wrote: > I think the core issue is not if non- incorporated entities have signed > contracts in the past, its weather those contracts would be legally > enforceable. > > For the contract to be enforceable it is commonly held in most legal > jurisdictions that the signatories must be legal entities. > > I don’t believe going further down this route is a valuable use of our > time, we need to accept that this is common legal practice in most > jurisdictions that we would consider incorporating the entity being > discussed. > > > > *James Gannon* > > *Director* > > *Cyber Invasion Ltd* > > *Dun Laoghaire, County Dublin, Ireland* > > *Cell: +353 (0)86-025-8974 <%2B353%20%280%2986-025-8974>* > > *Email:james@cyberinvasion.net > <james@cyberinvasion.net?subject=Via:%20Email%20Signature>* > > > > *From:* cwg-stewardship-bounces(a)icann.org [mailto: > cwg-stewardship-bounces(a)icann.org] *On Behalf Of *Bertrand de La Chapelle > *Sent:* Monday, December 01, 2014 8:16 PM > *To:* Greg Shatan > *Cc:* CWG Stewardship > *Subject:* [CWG-Stewardship] On ISOC signing the IETF MoU > > > > Greg, > > > > Thanks for your patience. I am not trying to run in circles, but believe > that consensus is reached when people do understand clearly why their > perceptions are wrong. I may be close to that and always am ready to be > corrected, which seems to be the case here. > > > > A final question though regarding your comment: > > > > 1) *Is incorporation required to "contract"?* Given that the IETF seems > to have an MoU with ICANN (among other arrangements with other "entities"), > I would suppose that the answer is no. Can someone clarify this important > point? > > > > GS: As pointed out before, ISOC is the signatory of the ICANN MoU. So > the answer to your question is *YES, YES, A THOUSAND TIMES YES.* > > > > But when I look at the IETF-ICANN MoU and its supplemental agreement of > 2013, I note that: > > > > - the IETF-ICANN MoU > <https://www.icann.org/resources/unthemed-pages/ietf-icann-mou-2000-03-01-en> > of 2000 was NOT signed by ISOC, as I already have mentioned, but by the > IETF Chair and the IAB Chair, both non-incorporated entities > > > > - the supplemental agreement > <https://iaoc.ietf.org/documents/2013-ICANN-IETF-MoU-Supplemental-Agreement-…> > is signed by Elise Gerich for ICANN and Ray Pelletier as IETF > Administrative Director and the organization listed for him is the IAOC. RFC > 4071 <https://tools.ietf.org/html/rfc4071> describes the IASA (IETF > Administrative Support Activity) of which the IETF Administrative Oversight > Committee (IAOC) is a part. > > > > Section 7 of this RFC says (emphasis added): > > > > Independence: The IASA shall be *distinct from other ISOC activities*. > > ISOC shall support the IASA through the mechanisms specified in > > this document and its successors. > > > > The hypothesis of moving IASA outside of ISOC is even explicitly envisaged (emphasis added): > > > > Removability: While there is no current plan to transfer the legal > > and financial home of the IASA to another corporation, the IASA > > shall be structured to enable a clean transition *in the event that* > > * the IETF community decides that such a transition is required* and > > documents its consensus in a formal document (currently called a > > BCP). In such a case, the IAOC shall give ISOC a minimum of six > > months' notice before the transition formally occurs. > > > > Am I missing something here or is the statement that ISOC is signing these agreements not entirely accurate? Given the importance of this argument in your position, could you please elaborate, if I may abuse your time. And once again, thanks for your patience. I am sure that these clarifications help several others come along towards common understanding. > > > > Best > > > > Bertrand > > > > > "*Le plus beau métier des hommes, c'est d'unir les hommes*", > Antoine de Saint Exupéry > ("*There is no greater mission for humans than uniting humans*") > > BERTRAND DE LA CHAPELLE > > Internet & Jurisdiction Project | Director > > email bdelachapelle(a)internetjurisdiction.net > > email bdelachapelle(a)gmail.com > > twitter @IJurisdiction <https://twitter.com/IJurisdiction> | > @bdelachapelle <https://twitter.com/bdelachapelle> > > mobile +33 (0)6 11 88 33 32 > > www.internetjurisdiction.net > > [image: A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS] > > > > On Mon, Dec 1, 2014 at 8:32 PM, Greg Shatan <gregshatanipc(a)gmail.com> > wrote: > > Bertrand: > > > > I think these questions have been asked and answered several times > (including by me in a response to an earlier email), but I"ll do it > again. Responses inline. > > > > On Mon, Dec 1, 2014 at 11:10 AM, Bertrand de La Chapelle < > bdelachapelle(a)gmail.com> wrote: > > Dear Greg, dear all, > > > > Two things: 1) a comment on the notion of "entity" and 2) a few key > questions that I would like to see clearly answered to move forward > > > > *1) ON THE NOTION OF "ENTITY" AND COMMON UNDERSTANDING* > > > > In your exchange below with Holly, you mentioned two definitions of the > term "entity". She rightly pointed there were of two types: one from a > legal perspective and another one a more general, layman's perspective. > > > > Naturally, the first one (the legal one) focuses on incorporation, with > mentions such as "separate existence for tax purposes". > > > > The second one, however, from the Merriam-Webster was more generic: > > > > *1 a : being > <http://www.merriam-webster.com/dictionary/being>, existence > <http://www.merriam-webster.com/dictionary/existence>; especially : > independent, separate, or self-contained existence* > > *b : the existence of a thing as contrasted with its attributes* > > *2: something that has separate and distinct existence and objective or > conceptual reality* > > *3: an organization (as a business or governmental unit) that has an > identity separate from those of its members* > > > > I have a simple question: is the IETF an "entity" acccording to that > definition, although it is not incorporated? I believe the answer is yes. > > > > GS: It is not an entity for the purpose of entering into contracts. ISOC > (which is a legal entity) enters into contracts. (IETF is an "organized > activity" of ISOC.) > > > > As you know, the W3C, at least for a long period of time, was not > incorporated, relying on three separate MoUs with "host" structures. (It > may have changed since then but that was the case for several years). Isn't > the W3C an "entity" for the purpose of the discussion we're having? > > > > GS: No. W3C is not an entity for the purpose of discussions regarding > entering into contracts. W3C is a contractual entity, created by a Joint > Agreement between the host institutions. W3C members enter into a Member > Agreement signed by all 4 host institutions. > > > > Likewise, aren't the gNSO and the ccNSO, "organizations" (it is in their > name) that have "an identity separate from those of (their) members", and > "something that has a separate and distinct existence and objective or > conceptual reality", and a "self-contained existence"? And therefore > "entities" in light of the MW definition above? > > > > GS: They may be entities for some purposes, but not for the purpose of > entering into contracts. To the extent they are entities, that is > irrelevant to the discussion at hand. > > > > You may have had a legal meaning in mind for the term "entity" because of > your own background but it seems clear that in Frankfurt, several people > clearly understood the word in its more general meaning. > > > > GS: I believe this has since been clarified. > > > > *2) KEY QUESTIONS* > > > > In my view, the core of the discussion here can be summarized as follows: > > > > 1) *Is incorporation required to "contract"?* Given that the IETF seems > to have an MoU with ICANN (among other arrangements with other "entities"), > I would suppose that the answer is no. Can someone clarify this important > point? > > > > GS: As pointed out before, ISOC is the signatory of the ICANN MoU. So > the answer to your question is *YES, YES, A THOUSAND TIMES YES.* > > > > 2) If the answer above is indeed no, is there any practical, legal or > other constraint that would *expressly forbid IETF, the NRO (or ASO), the > ccNSO and the gNSO to have each an MoU* with ICANN or any other > contractor for the IANA functions? > > > > GS: The answer above is yes, so no need to go further. (I will also > state again for the record that an MoU is a contract, and has to follow all > the rules applicable to contracts in general.) > > > > 3) If the answer to 2) above is no, what are *the pros and cons to > establishing instead a specific contracting Corporation*, in terms of > simplicity, compatibility between the mechanisms for the different groups > (parameters, numbers, names), guarantee of accountability, stability and > security of the system. > > > > GS: The answer to 2) is either "yes" or "not applicable," so no need to go > further. > > > > Unless these questions are clearly answered, I am afraid we will be > running in circles and losing time. > > > > GS: I am afraid that a number of people seem to insist on running in > circles. I have been spending quite some time trying to whack them back on > track. I do not think that the group as a whole is running in this circle, > or losing time, just a few people who desperately want to find something > that doesn't exist. If it did, don't you think I would be the first person > to bring it up? > > > > I hope that these questions are now clearly and definitively answered. > > > > Greg > > > > Thanks for the feedback. > > > > Best > > > > Bertrand > > > > > > > "*Le plus beau métier des hommes, c'est d'unir les hommes*", > Antoine de Saint Exupéry > ("*There is no greater mission for humans than uniting humans*") > > BERTRAND DE LA CHAPELLE > > Internet & Jurisdiction Project | Director > > > > On Sun, Nov 30, 2014 at 7:42 AM, Greg Shatan <gregshatanipc(a)gmail.com> > wrote: > > Holly and all: > > If we are turning to the dictionary, please consider the following: > > Entity > > *A real being; existence. An organization or being that possesses separate > existence for tax purposes. Examples would be corporations, partnerships, > estates, and trusts. The accounting entity for which accounting statements > are prepared may not be the same as the entity defined by law.* > > Entity *includes corporation and foreign corporation; not-for-profit > corporation; profit and not for-profit unincorporated association;* Business > Trust <http://legal-dictionary.thefreedictionary.com/Business+Trust>, *estate, > partnership, trust, and two or more persons having a joint or common > economic interest; and state, U.S., and foreign governments.* > > *An existence apart, such as a corporation in relation to its > stockholders.* > > *Entity includes person, estate, trust, governmental unit.* > > West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale > Group, Inc. All rights reserved. > > This is what I mean when I say "entity." I'll try to say "legal entity" > to avoid any doubt in future. But there was no doubt in my mind (or many > others) that when we were talking about creating an entity -- and in > particular, an entity that could enter into a contract -- that this is what > we were talking about. > > For what it's worth, the Merriam-Webster's definition that I found first > when searching the Internet is as follows: > > 1* a* *:* being <http://www.merriam-webster.com/dictionary/being>, > existence <http://www.merriam-webster.com/dictionary/existence>; > *especially* *:* independent, separate, or self-contained existence > > *b* *:* the existence of a thing as contrasted with its attributes > > 2*:* something that has separate and distinct existence and objective or > conceptual reality > > 3*:* an organization (as a business or governmental unit) that has an > identity separate from those of its members > > > > Greg > > > > On Sat, Nov 29, 2014 at 11:16 PM, Holly Raiche <h.raiche(a)internode.on.net> > wrote: > > Thank you Alan for the time and thought you have put into this. My > comments, for what they are worth, interspersed. > > > > Holly > > > > On 29 Nov 2014, at 4:23 pm, Alan Greenberg <alan.greenberg(a)mcgill.ca> > wrote: > > > > As I have mentioned during the F2F meeting in Frankfurt and on the most > recent teleconference, I have significant problems with the proposal > currently on the table. I am taking this opportunity to present my concerns > in somewhat more detail, and I will also present what I believe to be a > viable alternative. The ideas presented are my own, but I do know that they > are largely shared by my At-Large colleagues and by some others in the > community. > > I am also quite aware that my alternative options are likely to be > vehemently opposed by some. > > I should also add that there are aspects of the current draft CWG proposal > that I strongly support. The Independent Appeals Panel is perhaps the most > important one. > > > > *Overview *Many of my concerns are due to the large number of "details" > that are, as yet, unspecified. Perhaps some of my concerns will be negated > once there are sufficient answers, but I have the nagging feeling that for > many, there will be no viable answer. This message will necessarily be long > - my apologies for that. > > > > *Contract Co. *Many of the issues surround the "entity" (as it was > referred to in Frankfurt). > > > > First - using a Webster’s Dictionary (for the many Americans commenting) > entity is defined as a ‘thing which has reality and distinctness’. NB: It > does NOT NECESSARILY imply any corporate status. So there was a big and > surprising leap from entity - which many of us supported - to some kind of > corporate structure - which seems to have become a done deal in the minds > of some. However, if it ‘signs a contract’, it necessarily has some legal > status. And the tasks given below suggest it should. Is it too late to ask > whether it is possible to have the PRT without a contract company. > > > > The draft somewhat glibly says that it will only sign the contract. But > it seems to be outsourcing much of its responsibility to the > Multistakeholder Periodic Review Team (PRT), and that seems problematic. > Perhaps the intent is not that all of these things go to the PRT, but there > does not seem to be anywhere else for the functions to go. Among the tasks > that it has outsourced are consultation regarding the contents of future > RFPs, RFP issuance, RFP evaluation, contract negotiation and contract > enforcement. What it cannot outsource is addressing legal issues such as > being sued by a bidder who failed for win the contract and other such > possibilities. Whether it is possible to have such an empty company do all > this remains to be demonstrated. I will deal with problems with this > outsourcing under the PRT. > > The jurisdiction under which the company is registered has been the > subject of some discussion. Clearly there are those who feel that under no > conditions can it be the US. At the same time, there are some indications > (such as terms in the Kelly bill) that imply that the US Government may not > be willing to accept anything other than the US. Note that I understand > that the Kelly bill itself may wither and die, but to quote Milton Meuller, > "We should also pay attention to it because the bill provides a very good > benchmark for preparing for the kind of questions that the NTIA is likely > to be asked after they get a complete proposal from the ICG and begin to > implement it. The Kelly bill can be considered a list of the concerns that > US-based interests are going to be using to assess the final proposal. The > GAO Report is equally important in this regard. Ignore them at your peril." > (E-mail to the CWG-Stewardship list on 23 Nov 2014) > > Without details of exactly how this corporation will exist, it is > impossible to assure oneself that it cannot be captured or controlled by > some entity or government(s). Running IANA will be a treasured target by > some countries and we do not know what lengths they would go to capture the > contract. NTIA had the strength of the US (and its battleships and such) > behind it. Contract Co. will not. > > There has been no discussion about how this entity, or any part of the > overall proposal, is funded. More on this later. > > *Multistakeholder Periodic Review Team (PRT)* > > > > > The PRT is effectively the operational arm of Contract Co. It is the > entity that makes decision for Contract Co., presumably including those > related to the RFP, contract negotiations, contract enforcement and much > more. But by its very name, it is Periodic. It does not exist at all times > and there are some in the community that have said it should be > re-constituted afresh every time it is needed (perhaps like the Phoenix > born from the ashes of its predecessor). I fail to understand to how it can > take action on problems if it is not an ongoing entity. > > The description says that it is a "body" with representatives selected by > the relevant bodies. Accepting that "relevant" is to be decided later, it > is unclear under whose auspices this body is convened, and how we can > ensure that it remains free from capture or malformation. It was suggested > in Frankfurt that this body could be akin to (or even identical to) the > IANA-CWG, but given that the entire concept of this elaborate > infrastructure is to allow ICANN to be completely excluded from the IANA > management process, presumably because it has ceased to carry out this > function as well as all parties claim it is now doing, what makes us think > that ICANN would take responsibility for this, or more to the point, could > be trusted to do it properly? > > The idea behind talking about an entity rather than a corporate structure > was to suggest that it is possible to have structures with functions, > without those structures have an individual corporate personality. ALAC, > GNSO,ccNSO, SSAC are all examples of entities that have an ongoing > existence, functions, etc but do not have separate corporate identities. > It can be done - indeed, is being done. > > > So how this body, which is the critical keystone [ > http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this > entire superstructure depends, constituted, and funded. And how does one > ensure that it is not corrupted, or captured? Or sued. > > This was always my concern with creating a new corporate structure. > > > > A body as large as it will have to be will require infrastructure such > as a secretariat - how do we ensure that IT is not subverted (just look at > all the effort that has gone into ensuring an independent ICG secretariat)? > And without a corporate backing of the PRT, its members would be personally > liable in the case of a lawsuit. Who would want to serve on such a group? > Moreover, in an environment where the PRT is taking very significant > decisions, both financial offers and personal threats would be an effective > method of capture (and presumably this is all volunteer work, or at most a > modest stipend). > > For my money, these are critical questions - which remain unanswered. > > > Surely, the PRT, which is implicitly all powerful, would need a new > oversight mechanism over it! And who oversees THAT oversight body? > > EXACTLY - but the same can be said of the Contract Company. Who funds it, > who monitors it. And do we not then wind up with accountability issues for > ICANN AND its oversight body. > > > > > *Customer Standing Panel (CSC) *It is unclear exactly what this body > monitors. If it is JUST service levels committed to by IANA, the > composition may be ok. But if it is also responsible for ensuring that IANA > is following policy, then the composition MUST reflect the > multi-stakeholder body or bodies that created such policy. You cannot > presume that the customers, who may have been vehemently opposed to any > specific policy, will report that such a policy is not being policy. If the > CSC is NOT monitoring adherence to policy, then who is? It does not seem to > be covered in the proposal. During e-mail discussions, someone said it was > the job of the (for the gTLD space) GNSO. But it does not have the staff or > Bylaw mandate to do so, nor would it have any standing to complain to > whoever it is that would attempt enforcement (the PRT??). > > Absolutely agree. I think the problem with the concept is the word > ‘customer’; it does not encompass all those who are impacted by IANA/ICANN > decisions. And agree with the comment abut the GNSO. > > > There is reference to Liaison from ACs and SOs on the CSC. In the ICANN > context, a Liaison has no power other than that of persuasion. They have no > power to act if they are in disagreement with the majority of the full > members. > > Which is why a Standing Panel based on the MSM is the better model. > > > > > *Cost *Cost has been mentioned briefly above, but it is a significant > issue. Aside from the costs of the infrastructure we are discussing here, > there is the cost of IANA. Currently this is funded by ICANN. If ICANN were > to be taken out of the picture (and the possibility of doing that is the > ONLY reason for building all of this), where does the funding come from? > From ICANN, out of the goodness of its heart, despite no longer having ANY > control over how much money is demanded or how it is spent? By the gTLD > registries, who have said they would likely fund THEIR part of the costs, > but not the entire thing. By the ccTLDs who have clearly said we should not > depend on them (with a few exceptions)? > > WELL SAID > > > > > *Acceptability *The last time I heard Larry Strickling talk about the > stewardship transition, he said it would only take place if sufficient > controls were put in place to address ICANN messing up (i.e., in the > extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of > the IANA stewardship - why else would we care about ICANN accountability if > ICANN were not involved. From that, my take is they envision the IANA > responsibility being transferred to ICANN. The Kelly bill clearly presumes > this as well - why else would it be attempting to put so many constraints > on ICANN? > > Again, well said > > > It is not at all clear that a proposal such as one that the CWG has put in > this draft would be acceptable to the US government. > > I don’t think it would be either. > > > It will certainly not be a favoured proposal from the point of view of the > ICANN Board (who may not have a direct say in this but cannot be totally > ignored either). > > > > *Integratability *The ICG will be tasked with integrating the CWG > proposal with that of the RIRs and the IETF. Although this is clearly their > job and not ours, I have always believed that one needs to look ahead to > ensure that there are no impassable roadblocks ahead. > > We do not definitively know what those proposals will be, but indications > are emerging. Both bodies seem to be happy with how ICANN is managing IANA, > but both feel that in the event of any untoward action, they could move the > responsibility associated with their areas somewhere else. Since in both > cases, it is the same body that sets the policy that would judge it, no > great complexity is involved. In ICANN's case, since the bodies that set > policy in the names space are (to a large extent) an integral part of > ICANN, they cannot take action against their "parent" (so to speak). Thus > this cumbersome alternative. > > Integrating these two approaches may be difficult. > > > > *Lost Opportunity *Part of the IANA Stewardship Transition is to put in > place suitable ICANN accountability and governance changes so as to ensure > the continuity of the IANA function. > > If all of the questions posed here, and the ones raised by others are > addressed, we would end up moving from a situation where an entity (the > NTIA of the US government) awards the IANA contract. The contract is > currently held by ICANN but in theory at some future date, it could be > awarded to some other organization, removing ICANN from any operational > connection to ICANN. > > The new situation would be where Contract Co. awards the IANA contract. > The contract will initially be held by ICANN but in theory at some future > date, it could be awarded to some other organization, removing ICANN from > any operational connection to ICANN. > > Notice the parallel wording. ICANN really has no motivation to change to > effect this change. And in all likelihood any change associated with this > transition will be minimal. > > If we go down the path of the current draft CWG proposal, I believe that a > major opportunity will have been lost to reform ICANN. > > > > *Alternative *Simply criticizing the current CWG draft proposal is not > particularly useful without alternatives. My alternative is certain to not > please some of the parties in this discussion, but I believe that it is > both possible and viable. > > All of the complexity of the CWG draft proposal is there to cover the > eventuality that ICANN suddenly or gracefully stops performing the IANA > function to the satisfaction of the community. That was indeed the > situation a number of years ago, and ICANN took effective action to rectify > the problems (that is, the NTI did not have to yank the contract to fix the > problems). At the moment all parties seem to agree that there are no > significant outstanding major problems, certainly none that could justify a > change in the status quo. But there is a recurrent fear of "what if". What > if ICANN had the IANA responsibility in perpetuity and stopped caring. Or > had a Board that deliberately and without community support took action or > inaction to harm how the IANA functions are carried out (the "rogue Board > scenario). > > These worst case alternatives are indeed possible. And since under the > current ICANN Bylaws, the Board is effectively sovereign, little could be > done short of changing the Board over a period of 3+ years. > > And this is what worries Larry Strickling - what he said publicly at the > last ICANN meeting. He does want a credible answer that will satisfy his > masters (including Congress) > > > I suggest that there are ways to alter ICANN's Bylaws to allow the > effective control of an out-of-control Board. These mechanisms will not be > particularly appreciated by the ICANN Board, but I believe that such > measures (or something similar) would be adopted if that is what is > required to be granted IANA. > > There are a number of components that I will describe. They are not > necessarily a complete or even the correct set. Putting in place a complete > set of cohesive recommendations is what the Accountability CCWG is being > convened for. But the existence of the following as a starting point, I > believe, demonstrates that there IS a way to proceed forward. > > - ACs and SOs must be given the ability to recall their sitting > Board member. There will be no need to await the end of the current 3-year > term. > - Certain classes of decision regarding IANA can only be made with > (for an example) a supermajority (2/3) of the Board's maximum > Bylaw-mandated membership approving the decision. Without the bulk of the > AC/SO Board members, there will not be a critical mass of Board members to > take such a decision. > - Certain classes of decision regarding IANA may only be made after > notification period and public comment. This would allow the ACs and SOs > sufficient time to act to recall their Board members > - It is possible that the composition of the Board might need to be > slightly altered to ensure that a recall of most but not all AC/SO Board > members would be effective in halting action. Or a higher threshold than > supermajority might be needed. > - Bylaws regarding GAC advice related to IANA might need to somewhat > altered to compensate for the GAC not having sitting Board members. > - Similarly, non-affiliated ccTLDs would need to be worked into the > equation. > - If allowed under California law, the Bylaws could be require that > under certain circumstances, a Board decision could be appealed to an > external body (similar to the proposal's Independent Appeal for IANA > decisions) and that the decision would be binding and enforceable in courts. > > I don’t think this is the entire answer BUT it goes a long way towards a > workable response that can dovetail nicely with what both the numbers and > protocols community are coming up with. > > > > Again, that you Alan - this is a really good summary of both concerns and > a very positive way forward. > > > > > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship > > > > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship > > > > -- > > *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* > > *666 Third Avenue **ï** New York, NY 10017-5621* > > *Direct* 212-885-9253 *| **Main* 212-949-9022 > > *Fax* 212-949-9190 *|* *Cell *917-816-6428 > > *gsshatan(a)lawabel.com <gsshatan(a)lawabel.com>* > > *ICANN-related: gregshatanipc(a)gmail.com <gregshatanipc(a)gmail.com> * > > *www.lawabel.com <http://www.lawabel.com/>* > > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship > > > > > > > > -- > > *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* > > *666 Third Avenue **ï** New York, NY 10017-5621* > > *Direct* 212-885-9253 *| **Main* 212-949-9022 > > *Fax* 212-949-9190 *|* *Cell *917-816-6428 > > *gsshatan(a)lawabel.com <gsshatan(a)lawabel.com>* > > *ICANN-related: gregshatanipc(a)gmail.com <gregshatanipc(a)gmail.com> * > > *www.lawabel.com <http://www.lawabel.com/>* > > >

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Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option
by Alan Greenberg Dec. 1, 2014

Dec. 1, 2014

Greg, Thank you for actually going through my message and addressing the points I raised. It is refreshing compared to the hand-waving that others have done. You have indeed addressed some of my concerns. Others I believe still need further work and for others, I think there is still a lack of understanding the point I was making. I will respond to you in some detail, but unfortunately I will not have the time to do that today (or perhaps even tomorrow). Alan At 01/12/2014 01:22 PM, Greg Shatan wrote: >Alan: > >Thank you for your email. My specific thoughts >are inline below. I apologize for the length, >but I have tried to be as comprehensive as >possible within a reasonable timeframe. > > >On Sat, Nov 29, 2014 at 12:23 AM, Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca> wrote: >As I have mentioned during the F2F meeting in >Frankfurt and on the most recent teleconference, >I have significant problems with the proposal >currently on the table. I am taking this >opportunity to present my concerns in somewhat >more detail, and I will also present what I >believe to be a viable alternative. The ideas >presented are my own, but I do know that they >are largely shared by my At-Large colleagues and >by some others in the community. > >I am also quite aware that my alternative >options are likely to be vehemently opposed by some. > >I should also add that there are aspects of the >current draft CWG proposal that I strongly >support. The Independent Appeals Panel is perhaps the most important one. > >Overview > >Many of my concerns are due to the large number >of "details" that are, as yet, unspecified. >Perhaps some of my concerns will be negated once >there are sufficient answers, but I have the >nagging feeling that for many, there will be no viable answer. > > >GS: I do not share your pessimism. Indeed, I >think that I have offered viable and sufficient >answers in this email, and others have done so in their responses as well. > >This message will necessarily be long - my apologies for that. > >Contract Co. > >Many of the issues surround the "entity" (as it >was referred to in Frankfurt). The draft >somewhat glibly says that it will only sign the >contract. But it seems to be outsourcing much of >its responsibility to the Multistakeholder >Periodic Review Team (PRT), and that seems problematic. > > >GS: I think this is more accurately characterized as delegating. > >Perhaps the intent is not that all of these >things go to the PRT, but there does not seem to >be anywhere else for the functions to go. Among >the tasks that it has outsourced are >consultation regarding the contents of future >RFPs, RFP issuance, RFP evaluation, contract >negotiation and contract enforcement. What it >cannot outsource is addressing legal issues such >as being sued by a bidder who failed for win the >contract and other such possibilities. > > >GS: This is fairly simple to resolve. The >winning bidder must be required to indemnify, >defend and hold harmless the PRT. > >Whether it is possible to have such an empty >company do all this remains to be demonstrated. > > >GS: Contract Co. will need to have just enough >substance to accomplish these acts, all of which >are well within the bounds of corporate >authority. I see no reason why Contract Co. >could not do all these things, while remaining a >lightweight, constrained entity. > >I will deal with problems with this outsourcing under the PRT. > >The jurisdiction under which the company is >registered has been the subject of some >discussion. Clearly there are those who feel >that under no conditions can it be the US. At >the same time, there are some indications (such >as terms in the Kelly bill) that imply that the >US Government may not be willing to accept >anything other than the US. Note that I >understand that the Kelly bill itself may wither >and die, but to quote Milton Meuller, "We should >also pay attention to it because the bill >provides a very good benchmark for preparing for >the kind of questions that the NTIA is likely to >be asked after they get a complete proposal from >the ICG and begin to implement it. The Kelly >bill can be considered a list of the concerns >that US-based interests are going to be using to >assess the final proposal. The GAO Report is >equally important in this regard. Ignore them at >your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014) > > >GS: There's no getting around the fact that >jurisdiction will be perceived as an issue, and >that it will need to be resolved. But that is >true of any solution other than an >"internal-to-ICANN" solution, which would keep >everything in the US (unless, of course, you >propose to move ICANN, which I am confident is >out of our scope. In any event, I don't think >that jurisdiction is as big an issue as some >would like to think it is. But that's just >me. Regardless, I don't think that jurisdiction >can be raised in the abstract. The specific >concerns raised by specific jurisdictions need to be explicitly stated. > >Without details of exactly how this corporation >will exist, it is impossible to assure oneself >that it cannot be captured or controlled by some entity or government(s). > > >GS: Obviously, we all need to work on >"connecting the dots" (i.e., filling in >details). As I've mentioned before, the >articles of incorporation and bylaws can be set >up so that Contract Co. is essentially compelled >to accept the decisions of the PRT with >virtually no discretion. The particular actions >that can and can't be taken by the directors can >be carefully limited and circumscribed. This is >quite commonly done when setting up corporations >for specific purposes. In some cases, it is >necessary that a company be "bankruptcy remote" >(also sometimes referred to as "bankruptcy >proof"). If so, there are a series of >prohibitions, covenants and approvals baked into >the bylaws that prevent the company from putting >itself in the position to be declared >bankrupt. There is also a prohibition against >the directors changing the bylaws to try to >defeat these prohibitions, covenants and >approvals. Similarly, corporations are set up >for specific purposes within the structure of a >private equity fund or hedge fund; these >corporations are also highly constrained in >their actions. This is all well trod ground. I >don't see how such a corporation could be >"captured" or controlled by another entity or a >government. However, without details of exactly >how you expect this corporation to be captured, >it is impossible to see whether this is a >credible threat at all, even before putting in >constraining and limiting controls. Without >details, "capture" -- like "jurisdiction" -- is >just a word being used as a bogeyman or a >rallying cry, stirring emotion but conveying no useful information. > > >Running IANA will be a treasured target by some >countries and we do not know what lengths they >would go to capture the contract. NTIA had the >strength of the US (and its battleships and such) behind it. > > >GS: Until this point, I had thought you were >using the term "capture" metaphorically. Now I >fear that you are using it literally. I do not >think that Contract Co. needs to raise a >standing army or build a fleet of >battleships. Indeed, I can't think of an >instance where a corporation has resorted to >physical force to avoid "capture." I do >recognize that there are certain countries in >the world where companies have been >"de-privatized." We should avoid those. More >practically, it should be set forth as a >requirement that any respondent to an RFP must >not be a government or intergovernmental body, >just as NTIA required, and have protections in >place to assure Contract Co./PRT that it cannot later be captured. > >Contract Co. will not. > > >GS: It will not need to (especially the >battleships part). It will be set up to >eliminate opportunities for capture, and it will >have the protection of the rule of law. > >There has been no discussion about how this >entity, or any part of the overall proposal, is funded. More on this later. > >Multistakeholder Periodic Review Team (PRT) > >The PRT is effectively the operational arm of >Contract Co. It is the entity that makes >decision for Contract Co., presumably including >those related to the RFP, contract negotiations, >contract enforcement and much more. But by its >very name, it is Periodic. It does not exist at >all times and there are some in the community >that have said it should be re-constituted >afresh every time it is needed (perhaps like the >Phoenix born from the ashes of its predecessor). >I fail to understand to how it can take action >on problems if it is not an ongoing entity. > > >GS: I think that it is fairly clear that the >PRT has to be in a state of readiness in order >to deal with "non-periodic" events. On the other >hand, we don't want the PRT to feel the need to >justify its existence or fill monthly meeting >agendas or expand its scope. These can be >controlled by the PRT's organizing documents (perhaps a charter). > >The description says that it is a "body" with >representatives selected by the relevant bodies. >Accepting that "relevant" is to be decided >later, it is unclear under whose auspices this >body is convened, and how we can ensure that it >remains free from capture or malformation. It >was suggested in Frankfurt that this body could >be akin to (or even identical to) the IANA-CWG, >but given that the entire concept of this >elaborate infrastructure is to allow ICANN to be >completely excluded from the IANA management >process, presumably because it has ceased to >carry out this function as well as all parties >claim it is now doing, what makes us think that >ICANN would take responsibility for this, or >more to the point, could be trusted to do it properly? > > >GS: In terms of capture or malformation, I think >the answer lies first in the basic precepts of >"multistakeholderism," which I am a strong >believer in, even when I disagree with a >particular result. Broadly speaking, by >constituting the team from a diverse set of >stakeholder groups and organizations, which >formally select the members, you have de facto >checks and balances, as the members and their >organizations have different interests and are >keeping a wary eye on the organization to see if >is going adrift or being pulled out of >alignment. The composition of the group must >also be calibrated to avoid giving too much >power to anyone stakeholder group or set of >naturally aligned stakeholder groups. Finally, >you have to give the organizations the ability >to pull their representative if he/she goes >"rogue" (to borrow one of your suggestions for >the ICANN Board). In order to capture such a >group, you would need to capture enough members >to achieve consensus (i.e., a significant >majority, to say the least), which in turn would >mean capturing a series of diverse, disparate >and sometimes opposed groups and >organizations. I think this might have happened >in Star Wars -- but even in fiction, it took >three movies for Senator Palpatine to become >Emperor Palpatine, as well as acts of war to >suspend the multistakeholder model of the >Galactic Senate. I don't see this happening in >reality, unless the Dark Lords of the Sith are >among us. Seriously, though, I think we have to >have some faith in the multistakeholder model, >not just for the PRT, but for the future of Internet Governance generally. > >As for whether the PRT could be akin to the CWG >-- that does not imply that the PRT would be >under the ICANN umbrella. I think the point was >more one of composition. However, now that you >raise the point, this might be a valid >alternative. I think it is important to >distinguish between "ICANN the corporation" and >"ICANN the community". An ICANN >multistakeholder group is not the same as ICANN >the corporation, which what I think you refer to >when you say ICANN above. So, while ICANN the >corporation may not be "trusted to do it >properly," I have a much higher degree of >confidence that a multistakeholder group will, >whether or not it takes some shelter under the >ICANN umbrella. That does not mean these are >the only alternatives. The PRT could exist >without being aligned with any other >organization, it could be a committee under the >auspices of Contract Co., or it could even >become aligned with another existing organization (e.g., ISOC). > >So how this body, which is the critical keystone >[ >http://en.wikipedia.org/wiki/Keystone_(architecture)] >on which this entire superstructure depends, >constituted, and funded. And how does one ensure >that it is not corrupted, or captured? > > >GS: I believe I've answered this above. Any >further details on corruption or capture >scenarios would be appreciated (but leave out the battleships, please). > >Or sued. A body as large as it will have to be >will require infrastructure such as a >secretariat - how do we ensure that IT is not >subverted (just look at all the effort that has >gone into ensuring an independent ICG secretariat)? > > >GS: I have my own opinions about the necessity >of the effort that the ICG took to ensure an >independent secretariat (but maybe they had the >time to turn to such efforts). Nonetheless, it >may provide some useful lessons on doing so, and >such things are always much easier the second time around. > >And without a corporate backing of the PRT, its >members would be personally liable in the case >of a lawsuit. Who would want to serve on such a >group? Moreover, in an environment where the PRT >is taking very significant decisions, both >financial offers and personal threats would be >an effective method of capture (and presumably >this is all volunteer work, or at most a modest stipend). > > >GS: Assuming arguendo that PRT is not aligned >with any other body, Contract Co. could purchase >insurance to cover the PRT members, naming them >as additional insureds. By the way, has anyone >checked how we are protected from personal >liability and the possibility of being >sued? Does ICANN carry "multistakeholder >insurance?" I would also be curious to know >whether anyone in this group has been subject to >financial offers or personal threats in order to >capture them. I, for one, have not. A funny >thing, too -- in those instances where capture >occurs (say, soccer referees or baseball teams) >its usually pretty obvious when they go from >free will to puppetry. Now, when you get to >spycraft and other dark arts, it may be more >difficult, but I still think we are straying into the realm of fiction here. > >Surely, the PRT, which is implicitly all >powerful, would need a new oversight mechanism >over it! And who oversees THAT oversight body? > > >GS: Surely not. First, the PRT is not all >powerful, implicitly or otherwise. Its members >must answer to their constituents. Similarly, >the oversight mechanism over the PRT is the >diverse collection of stakeholder groups and >communities, not a body. And no further body is >needed after that. The threat of "infinite oversight" is a myth. > >Customer Standing Panel (CSC) > >It is unclear exactly what this body monitors. >If it is JUST service levels committed to by >IANA, the composition may be ok. But if it is >also responsible for ensuring that IANA is >following policy, then the composition MUST >reflect the multi-stakeholder body or bodies that created such policy. > > >GS: I personally agree that there should be >multistakeholder representation of some sort on >the CSC. But this is still an open issue. > >You cannot presume that the customers, who may >have been vehemently opposed to any specific >policy, will report that such a policy is not >being policy. If the CSC is NOT monitoring >adherence to policy, then who is? It does not >seem to be covered in the proposal. > > >GS: The NTIA currently monitors policy adherence >to an extent, at least with regard to >delegations and redelelegations. The Del/Redel >report must describe how the del/redel follows >existing policy. While we haven't nailed this >down yet, I believe that receiving and reviewing >Del/Redel reports goes to the CSC in the first >instance, and can be escalated to the PRT if >need be. As to whether the CSC will report that >policy is not being followed -- if it doesn't, >it risks destroying its own legitimacy. That's a pretty big risk to take. > >During e-mail discussions, someone said it was >the job of the (for the gTLD space) GNSO. But it >does not have the staff or Bylaw mandate to do >so, nor would it have any standing to complain >to whoever it is that would attempt enforcement (the PRT??). > > >GS: The GNSO Council has in fact raised policy >concerns regarding various gTLD implementations >and proposals. I believe this is well within >its mandate, and it is worth considering whether >the GNSO Council should have standing to raise >these concerns to the PRT and/or the IAP. > >There is reference to Liaison from ACs and SOs >on the CSC. In the ICANN context, a Liaison has >no power other than that of persuasion. They >have no power to act if they are in disagreement >with the majority of the full members. > > >GS: In that case, it may be more appropriate >for these to be members of, rather than liaisons >to, the CSC. However, I would note that >liaisons do have the power of persuasion, which >you used quite effectively on the GNSO >Council. Finally, I would doubt that the CSC >would be able to act by simple majority, > >Cost > >Cost has been mentioned briefly above, but it is >a significant issue. Aside from the costs of the >infrastructure we are discussing here, there is >the cost of IANA. Currently this is funded by >ICANN. If ICANN were to be taken out of the >picture (and the possibility of doing that is >the ONLY reason for building all of this), where >does the funding come from? From ICANN, out of >the goodness of its heart, despite no longer >having ANY control over how much money is >demanded or how it is spent? By the gTLD >registries, who have said they would likely fund >THEIR part of the costs, but not the entire >thing. By the ccTLDs who have clearly said we >should not depend on them (with a few exceptions)? > > >GS: I agree that funding is an aspect that needs >more attention. But the fact that we haven't >yet turned to this in detail does not disqualify >the proposal in any way. Contract Co. is >granting ICANN a valuable right -- the right to >perform a valuable service. If ICANN paid a fee >for that right, it would not be out of the >goodness of its heart. There's no such thing as >a free lunch. I'm confident that we will find a >way to deal with this, given the value that is inherent in the IANA Functions. > >Acceptability > >The last time I heard Larry Strickling talk >about the stewardship transition, he said it >would only take place if sufficient controls >were put in place to address ICANN messing up >(i.e., in the extreme, a rogue Board). That >PRESUMES that it is ICANN at the centre of the >IANA stewardship - why else would we care about >ICANN accountability if ICANN were not involved. > From that, my take is they envision the IANA >responsibility being transferred to ICANN. The >Kelly bill clearly presumes this as well - why >else would it be attempting to put so many constraints on ICANN? > > >GS: I disagree with this assumption entirely as >I said to Holly earlier. The NTIA is looking to >transition stewardship of the IANA Function to >the global multistakeholder community, not to ICANN . > >It is not at all clear that a proposal such as >one that the CWG has put in this draft would be >acceptable to the US government. > > >GS: My crystal ball is at least as cloudy as >yours, but I predict that a proposal that failed >to transition NTIA's role to the global >multistakeholder community, and instead >transferred it directly into the hands of ICANN, >would be far more likely to be unacceptable to >the US government. This could be the "internal >to ICANN" concept's fatal flaw. > >It will certainly not be a favoured proposal >from the point of view of the ICANN Board (who >may not have a direct say in this but cannot be totally ignored either). > > >GS: This may be true, but we would be betraying >our mandate and our constituents if we decided >that our aim was to please the Board. In any >event, I have faith (perhaps more than you) that >the Board isn't going to try to stop a >disfavored proposal. That would raise quite a >ruckus, if ICANN the corporation were to turn on >ICANN the community. Remember, this is not just >one SO or AC, which the Board may choose to >ignore at some peril. We are the massed army of >stakeholders (unless, of course, we are riven by >division, which would be far more than >unfortunate -- as Milton notes elsewhere, the >vultures are circling, and if the Board has >indigestion, that is the least of our worries. > >Integratability > >The ICG will be tasked with integrating the CWG >proposal with that of the RIRs and the IETF. >Although this is clearly their job and not ours, >I have always believed that one needs to look >ahead to ensure that there are no impassable roadblocks ahead. > >We do not definitively know what those proposals >will be, but indications are emerging. Both >bodies seem to be happy with how ICANN is >managing IANA, but both feel that in the event >of any untoward action, they could move the >responsibility associated with their areas >somewhere else. Since in both cases, it is the >same body that sets the policy that would judge >it, no great complexity is involved. In ICANN's >case, since the bodies that set policy in the >names space are (to a large extent) an integral >part of ICANN, they cannot take action against >their "parent" (so to speak). Thus this cumbersome alternative. > >Integrating these two approaches may be difficult. > > >GS: It might be difficult; it might not. As you >note, names is differently situated than the >other two areas. Therefore, a one size fits all >approach was always unlikely. By creating >Contract Co. and the PRT, we are actually closer >to the model of the other two areas, which >should make integration easier, not harder. > >Lost Opportunity > >Part of the IANA Stewardship Transition is to >put in place suitable ICANN accountability and >governance changes so as to ensure the continuity of the IANA function. > >If all of the questions posed here, and the ones >raised by others are addressed, we would end up >moving from a situation where an entity (the >NTIA of the US government) awards the IANA >contract. The contract is currently held by >ICANN but in theory at some future date, it >could be awarded to some other organization, >removing ICANN from any operational connection to ICANN. > >The new situation would be where Contract Co. >awards the IANA contract. The contract will >initially be held by ICANN but in theory at some >future date, it could be awarded to some other >organization, removing ICANN from any operational connection to ICANN. > >Notice the parallel wording. ICANN really has no >motivation to change to effect this change. And >in all likelihood any change associated with this transition will be minimal. > > >GS: I think you probably meant to say IANA at >the end of each of those paragraphs, rather than >ICANN. In any event, I understand the concept >of leverage here. I think we exercise that >leverage along the lines that the two CWG's work >is "interrelated and interdependent" and that >Stream 1 accountability has to be resolved >before there is a transition. We can't try to >reform all of ICANN ourselves from the platforrm >and mandate of transitioning NTIA stewardship. >That would be massive mission creep. There is a >careful balance here in using the IANA >Transition to ensure that Enhanced ICANN >Accountability is not just an empty phrase, but >that balance is lost if we put forth a plan that >does not really transition NTIA's roles and that >reaches far beyond our mandate in order to enact >major reforms. We cannot do the job of the ICG >or the Accountability CWG, but we do depend on >them both to do their jobs right. > >Furthermore, I don't think Contract Co. is the >status quo. The NTIA is controlled by the US >Government. Contract Co. is controlled by the >multistakeholder community. What makes you >think we will sit on our collective hands? Also, >I anticipate that the contract will have more >"teeth" in it to enforce accountability >(including termination for breach, which is >absent from the current NTIA agreement except in >extremely narrow circumstances). > >If we go down the path of the current draft CWG >proposal, I believe that a major opportunity >will have been lost to reform ICANN. > > >GS: I disagree for the reasons stated >above. We in this CWG may have lost that major >opportunity, but the ICANN community has not >lost that opportunity. It's right next door in >the Accountability CWG. What we have not lost >is the ability to use our leverage judiciously >to support the "interrelated and interdependent >efforts" of the CWG Accountability. And they >way we can lose that is to be overtaken by >internal divisions, failing to meet our >timeline, and squandering our >legitimacy. Frankly, I don't think that is >what's happening here -- there's a reason that >ICANN consensus is "rough" -- some divergence is >expected, but the show must go on. Only where >this true divergence (i.e., no view >predominates) or strong opposition.does the show >not go on. While I agree with Chuck that a >formal consensus call is premature, I think that >in the fullness of time and through our >continuing good faith efforts, we will get there in good shape. > >Alternative > >Simply criticizing the current CWG draft >proposal is not particularly useful without alternatives. > > >GS: Alternatives can be helpful. So can >suggestions for improvement. These can come >from adapting certain aspects of alternatives, >as has already happened. It can also happen >when people who look for problems also look for solutions. > >My alternative is certain to not please some of >the parties in this discussion, but I believe >that it is both possible and viable. > >All of the complexity of the CWG draft proposal >is there to cover the eventuality that ICANN >suddenly or gracefully stops performing the IANA >function to the satisfaction of the community. > > >GS: I disagree, and I think this >mischaracterizes both the proposal and the work >that led to it. The framework of the CWG draft >proposal is there first to replace the NTIA's >roles. As you will recall, we spent a couple of >hours defining the various roles that NTIA >currently performs in relation to IANA. The CWG >structure was then fit to those roles. Dealing >with non-performance is built into the framework >as well, but it is hardly the sole reason for it. > >That was indeed the situation a number of years >ago, and ICANN took effective action to rectify >the problems (that is, the NTI did not have to >yank the contract to fix the problems). At the >moment all parties seem to agree that there are >no significant outstanding major problems, >certainly none that could justify a change in >the status quo. But there is a recurrent fear of >"what if". What if ICANN had the IANA >responsibility in perpetuity and stopped caring. >Or had a Board that deliberately and without >community support took action or inaction to >harm how the IANA functions are carried out (the "rogue Board scenario). > >These worst case alternatives are indeed >possible. And since under the current ICANN >Bylaws, the Board is effectively sovereign, >little could be done short of changing the Board over a period of 3+ years. > >I suggest that there are ways to alter ICANN's >Bylaws to allow the effective control of an >out-of-control Board. These mechanisms will not >be particularly appreciated by the ICANN Board, >but I believe that such measures (or something >similar) would be adopted if that is what is required to be granted IANA. > > >GS: I think that you have taken your boat of >the CWG's waters with this >statement. Accountability is part of our >responsibility, but it is accountability >relating to the IANA Functions. Using that >responsibility to try to re-make ICANN from our >group is a massive overreach. We (individually) >can be part of that grander effort by >participating in the CWG on Accountability, and >as a group, by maintaining that Stream 1 must be >resolved before the transition takes place. > >There are a number of components that I will >describe. They are not necessarily a complete or >even the correct set. Putting in place a >complete set of cohesive recommendations is what >the Accountability CCWG is being convened for. >But the existence of the following as a starting >point, I believe, demonstrates that there IS a way to proceed forward. > >- ACs and SOs must be given the ability to >recall their sitting Board member. There will be >no need to await the end of the current 3-year term. >- Certain classes of decision regarding >IANA can only be made with (for an example) a >supermajority (2/3) of the Board's maximum >Bylaw-mandated membership approving the >decision. Without the bulk of the AC/SO Board >members, there will not be a critical mass of >Board members to take such a decision. >- Certain classes of decision regarding >IANA may only be made after notification period >and public comment. This would allow the ACs and >SOs sufficient time to act to recall their Board members >- It is possible that the composition of >the Board might need to be slightly altered to >ensure that a recall of most but not all AC/SO >Board members would be effective in halting >action. Or a higher threshold than supermajority might be needed. >- Bylaws regarding GAC advice related to >IANA might need to somewhat altered to >compensate for the GAC not having sitting Board members. >- Similarly, non-affiliated ccTLDs would >need to be worked into the equation. >- If allowed under California law, the >Bylaws could be require that under certain >circumstances, a Board decision could be >appealed to an external body (similar to the >proposal's Independent Appeal for IANA >decisions) and that the decision would be binding and enforceable in courts. > > >GS: I think your second and third suggestions >might have a place in the work of our group, and >perhaps the one about GAC advice related to IANA >(but the motivation for that suggestion is still >fuzzy to me). The rest of these fall outside >our mandate. If we were watching an ICANN Board >Committee with our mandate use that mandate to >remake broad swaths of ICANN governance with no >direct relationship to IANA, the multistakeholder howls would be deafening. > >What I found most disappointing when I reached >the end of this email for the first time, was >that there is really no proposal here. As noted >above, we noted several roles (we called them >"functions" in Frankfurt, but I think that leads >to confusion with the IANA Functions) that the >NTIA plays and that need to be replaced in some >form (not necessarily on an exact parallel >basis, but they need to be dealt with and their >raisons d'etre need to be considered and carried >through to any proposal). For convenience, I >will repeat our list of NTIA roles below: > >#1 APPROVAL FUUNCTION OF CHANGES TO THE ROOT ZONE > >#2 - PERFORMANCE REVIEW FUNCTION > >Periodic Review > >Transactional Performance review (SLAs) > >Perform (technical) audits and customer surveys > >#3 - CONTRACTING FUNCTION (ability to enter into a contract) > >Determining the substance of the contract > >Award / renewal of contract > >Understand what stakeholder concerns are > >Issuance of RFPs > >Contracting > >Ability to seek public comments > >#4 â ENFORCEMENT OF THE CONTRACT FUNCTION (incl. renewal/rebidding) > >Termination of contract; > >Ability to enforce > >Ability to seek public comments > >Ability to determine whether contract should be >terminated, including hearing of complaints > >Listen to community and act on its behalf > >Regrettably, I think your Alternative skips over >all of this, perhaps due to eagerness to fix >ICANN (which many of us are eager to do in one >way or another). Unfortunately, joining this >CWG meant that we must deal with "nuts and >bolts" issues relating to the NTIA's transition >of its role to the global multistakeholder >community. Your email is devoid of any >resolution for replacing these functions >currently carried out by NTIA. There are a >variety of resolutions that can be imagined in >an "internal to ICANN" proposal -- jobs to be >taken over, processes to be built or adapted, >documents to be written, working groups to be >formed, dispute resolution procedures to be >crafted, These could be configured in a number >of different ways. Unfortunately, you have not >provided us with a framework for any of >this. Certainly, an "internal to ICANN" >proposal would match up to each of these points >in ways that are not quite as obvious as the >current CWG proposal. For instance, in the >absence of a contract, "determining the >substance of the contract" is not directly >applicable. However, the contract is the >vehicle for setting forth ICANN's obligations >regarding IANA. Without a contract, these >obligations need to go somewhere, as does the >ability to enforce them. So the "substance" >still needs to be determined -- it just won't be >in a contract (not likely anyway, but it's your >proposal). Who will make this determination? >How will this be vetted through multistakeholder >processes? What document will contain this >substance? How will it be enforced? I could go >on, but I'm sure you get the point. > >So, I'm not sure what your Alternative is, but >it is not an alternative to the CWG >Proposal. If this were a Venn diagram, the two >circles would be barely overlapping. As I >stated in another thread "I don't think an >"internal to ICANN" proposal was ever put on the >table within the group prior to Frankfurt in any >kind of tangible, concrete fashion." I will add >now that I think that an "internal to ICANN" >proposal still has not been put on the table >within the group in any kind of tangible, >concrete fashion -- which leaves us dancing with >ghosts -- something out of which no progress can be derived, unfortunately. > >Greg > > > >_______________________________________________ >CWG-Stewardship mailing list ><mailto:CWG-Stewardship@icann.org>CWG-Stewardship(a)icann.org >https://mm.icann.org/mailman/listinfo/cwg-stewardship > > > >

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Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option
by Alan Greenberg Dec. 1, 2014

Dec. 1, 2014

Thanks Guru. My concerns regarding acceptability by the USG and integratability were just that - concerns, and I was not looking for explicit answers. Just raising flags. I do not believe that my concerns with the PRT have all been addressed. When I know who convenes it, who funds it, who protects it (and its members), who ensures that it IS in fact MS, all in the possible absence of ICANN from the entire picture, I may consider those questions no longer important. Alan At 01/12/2014 11:39 AM, Guru Acharya wrote: >I think most of Alan's concerns about integratability with other >proposals, acceptability by USG, nature of PRT etc have been >addressed by multiple people. > >What remains un-answered are Alan's concerns about (i) Contract Co >becoming a target for litigation; (ii) source of funding of Contract >Co; (iii) jurisdiction of Contract Co; and (iv) accountability of Contract Co. > >I agree that these are substantial concerns. > >The Contract Co can be the subject of litigation for multiple >reasons including wrongful termination of a IANA contract; or any >cause of action related to a failed bid for a IANA contract. It can >also be reasonable to assume that Contract Co will be made a party >to all cases that are against ICANN in the future. For example, a >case similar to the recent 'Iran/Iraq ccTLD as attachable property' >will definitely make Contract Co a respondent along with ICANN. > >Therefore, Contract Co will need a substantial litigation war chest. >There will also be substantial costs involved in contract drafting; >negotiation; preparation of RFPs etc. This needs to be addressed. >Greg suggested the possibility of a litigation indemnification >mechanism. A mechanism to deal with unforeseen non-litigation >expenses should also be explored. > >@Allan & Olivier: What accountability mechanisms do you suggest >should be built into the Contract Co by-laws? > > >On Mon, Dec 1, 2014 at 9:46 PM, Avri Doria ><<mailto:avri@acm.org>avri(a)acm.org> wrote: > >On 01-Dec-14 17:02, Alan Greenberg wrote: >>But my main reason for opposition is that I am far from convinced >>that all of the questions I and others have can be viably answered. > >As far as I can tell they have been answered. You just have not >accepted the answers you have been given. >which is of course your right. But from my reading they have been >answered multiple times in different ways. > >My answer invovled the parallel with the BCP 101 from the IETF. >where the administrator of contracting Co is just that an >administrator, acting like the lawyer who only does what she has >been instructed to do by the PRT. With the PRT being the >multistakeholders of ICANN and perhaps beyond that we are used to , >but unfettered by the ability of the Board to overrule their >decisions. And the PRT being awoken periodically and whenever the >CSC felt there was a crisis for them to handle. > >You seem to have an issue with them not being a standing >committee. The reason for that is to avoid them becoming ICANN like >and acquiring new functions because they were bored when they had >nothing else to do. Standing committees with nothing to do, find new >stuff to do. Hence the CSC as an alarm to bring them into existence >whenever necessary out of period. > >> >>I think that using the transition to force accountability with >>respect to policy IS out of scope. But I also think that SOME >>transition models will have the incidental benefit of better >>policy-making accountability. > >It is not out of scope with forcing accountability for IANA. A >periodic RFP is repsnsible for forcing IANA accountability whether >it is at ICANN or elsewhere. And IANA accountability is in our charter. > >avri > > >_______________________________________________ >CWG-Stewardship mailing list ><mailto:CWG-Stewardship@icann.org>CWG-Stewardship(a)icann.org >https://mm.icann.org/mailman/listinfo/cwg-stewardship >

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