Questions regarding InternetNZ's views on the IANA transition
Hi Jordan (and all), I wanted to follow up on a few exchanges that Jordan and Chris had over the last couple of weeks regarding the work of the CWG on the IANA transition. In particular, I wanted to ask a few questions in order to get a better understanding of the reasons behind InternetNZ's position and the principles outlined in your submission to the CWG's consultation. Among your key principles, there are some that I obviously wouldn't question - for example, the ongoing independence and policy development responsibilities of ccTLD managers. But there are a few principles upon which you base your position that don't immediately appear aligned with ICANN's core mission nor the goals of the NTIA's intent to transfer the management of the DNS "to the private sector". As you know, the fundamental mission of ICANN is to coordinate the stable and secure operation of the Internet. Supporting principles include the introduction of consumer choice and competition, stakeholder participation and the meaningful engagement of other relevant stakeholder bodies and affected parties. But neither the ICANN Bylaws nor mission statement refer explicitly to Internet NZ's proposed principles of separability and a distributed model for stewardship. How then, do your proposed principles contribute to ICANN's ongoing mission, and the resolution of the current transition process? Why are the principles of separability and distributed stewardship afforded such weight? In particular, as a ccTLD manager, what has led you to assume and justify the principles of separability and distributed stewardship, when no such principles existed previously? My next few questions relate to the fundamental differences of opinion we have exchanged regarding the future of IANA. Even if the principle of structural separation is to be accepted, why does InternetNZ believe that such a significant and rigid act of separation (establishment of a Contract Co) is required at this stage of ICANN's evolution? Is it not equally valid to consider that the codified "ability" to separate in the future is an acceptable outcome? Are models, such as a Trust, at least equally capable of delivering a desired result, without issues such as jurisdiction and structure, that are associated with establishing a Contract Co.? I'd welcome your views - both via email and (inevitably) further discussion when we catch up in Singapore. Regards, Paul
Some responses whilst awaiting Jordan's: We are not transitioning to the "private sector"; we are transitioning to the "global Multistakeholder community". Not the same thing, if we are trying to be careful about language (as we should be). Separability (ie, the ability to remove the IANA Functions Operator from ICANN at some future date in response to some agreed triggers) is a principle that this CWG (not just Jordan) adopted as one of our Principles. One reason for this is that it does exist now -- NTIA has that ability. All of the models (including the auDA-inspired models) include this ability. Removing separability as an accountability measure would be the radical step here. Collapsing the NTIA's role into ICANN's would be the significant change. The "distributed" model of oversight was intended to provide a barrier to concentrating power in one body. Again, this is a feature of several models. It's not a necessity from an operational standpoint. Contract Co., the MRT and the CSC could be collapsed, but there would be strong objections from some quarters. Others might appreciate the simplicity and believe that excess empowerment can be solved in other ways. Also, if we are being careful and consistent about language, "structural separation" is not what you are using it to mean. Structural separation would be the current separation of those performing the IANA Functions Operator duties from ICANN (e.g., by putting them and their assets into a new corporation). Contract Co. Is not "structural separation," and creating it is not an "act of separation," it is (among other things) a tool to achieve separability. Trusts have their own issues of jurisdiction and structure. There is no easy answer. Hope this helps. Greg On Thursday, February 5, 2015, Paul Szyndler <paul.szyndler@auda.org.au> wrote:
Hi Jordan (and all),
I wanted to follow up on a few exchanges that Jordan and Chris had over the last couple of weeks regarding the work of the CWG on the IANA transition.
In particular, I wanted to ask a few questions in order to get a better understanding of the reasons behind InternetNZ’s position and the principles outlined in your submission to the CWG’s consultation.
Among your key principles, there are some that I obviously wouldn’t question – for example, the ongoing independence and policy development responsibilities of ccTLD managers.
But there are a few principles upon which you base your position that don’t immediately appear aligned with ICANN’s core mission nor the goals of the NTIA’s intent to transfer the management of the DNS “to the private sector”.
As you know, the fundamental mission of ICANN is to coordinate the stable and secure operation of the Internet.
Supporting principles include the introduction of consumer choice and competition, stakeholder participation and the meaningful engagement of other relevant stakeholder bodies and affected parties.
But neither the ICANN Bylaws nor mission statement refer explicitly to Internet NZ’s proposed principles of separability and a distributed model for stewardship.
How then, do your proposed principles contribute to ICANN’s ongoing mission, and the resolution of the current transition process? Why are the principles of separability and distributed stewardship afforded such weight?
In particular, as a ccTLD manager, what has led you to assume and justify the principles of separability and distributed stewardship, when no such principles existed previously?
My next few questions relate to the fundamental differences of opinion we have exchanged regarding the future of IANA.
Even if the principle of structural separation is to be accepted, why does InternetNZ believe that such a significant and rigid act of separation (establishment of a Contract Co) is required *at this stage* of ICANN’s evolution?
Is it not equally valid to consider that the codified “ability” to separate in the future is an acceptable outcome?
Are models, such as a Trust, at least equally capable of delivering a desired result, without issues such as jurisdiction and structure, that are associated with establishing a Contract Co.?
I’d welcome your views – both via email and (inevitably) further discussion when we catch up in Singapore.
Regards,
Paul
-- *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *Partner* *| IP | Technology | Media | Internet* *666 Third Avenue | New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>* *www.lawabel.com <http://www.lawabel.com/>*
Hi Paul, all: Thanks for your email. This is an important discussion for our ccTLD community as well as for all those affected by the transition of stewardship away from ICANN. In summary, for those who want the short version: - the principles of distributed stewardship and separability are status quo principles that are in place today. Some seem to want to upend them in favour of One Big ICANN to be the steward of the DNS, and yet such people are claiming black is white, and that those defending the status quo are somehow proposing a revolution. It is the other way around. - these principles are important to the stewardship of the DNS, not to the operation of ICANN per se - but they do have consequences for ICANN operations and structures, as set out below. - we need to conduct this discussion in a way that is accurate, not misleading, and that helps the community towards a consensus rather than driving people apart. Here below the longer version. Paul, there are several surprising and concerning points made in your email, which Greg Shatan’s earlier reply dealt with in part. The most significant strangeness is your assertion that distributed stewardship or separability are new principles. They are not new. They are the status quo. Today, stewardship of the DNS is distributed today: between ccTLD managers, gTLD managers, registrars, ICANN as a policy body, ICANN as the IANA Functions Operator, Verisign as the root zone maintainer, the NTIA as the steward of the system, Internet users as participants and more. Critical to these distributed roles and responsibilities is the independence of many of the players, and the complex web of relationships between them. Separability exists today because the NTIA assigns the right to operate the IANA functions to ICANN via a contract. NTIA could assign those functions to another party: most easily for names, but still with teeth for the other IANA customers. The question is, with NTIA stepping out of its crucial role as a) a component of the distributed stewardship system and b) as the core of separability, the granter of the rights to operate IANA, What should replace it? Our argument is the conservative one: that we should not create a Big Brother of Internet technical coordination by putting it all in ICANN; that we should retain the status quo of distributed stewardship and separability that we have today. In contrast, what those critiquing the status quo seem to be proposing is a very significant revolution. The implicit claim in your note and in the arguments Chris has been advancing is that One Big ICANN is an appropriate outcome: that what is today distributed among many parties should be more concentrated in the one institution. The CWG doesn’t agree, as Greg pointed out. I don’t agree with you. Many others don’t agree. The notion of creating a point of failure with significant power and authority in the Internet’s DNS is not one that anyone caring about the security and stability of the system should endorse. It’s a significant change to the status quo and no argument justifying this change has yet been advanced - other than non-arguments about convenience, or partially . So in terms of the stewardship of the DNS system, that’s where the difference is. You want a narrowing of that responsibility to fewer players. I want to see it remain broad based and external to ICANN. On operations, things are simpler I think. There’s a pretty narrow difference here. We seem to agree on the following points: - ICANN is operating the IANA functions well at the moment - There is no desire to remove IANA from ICANN at the moment - customers should have a key role in oversight of the IANA functions - There should be a way to remove IANA from ICANN should ICANN fail at operating the functions - A decision about separating IANA from ICANN would need to meet high thresholds The point of departure seems to be what vehicle allows for separation should it be required: an internal bylaw, an internal trust, an external trust, an external contract company. That’s an implementation detail in respect of the direct operational question, but it loops back to the broader question of the overall stewardship. An external-to-ICANN option is the status quo and is consistent with the principles we are arguing for. An internal-to-ICANN option is the revolution you propose, and is not consistent with those principles. The principles we set out relate to the transition of stewardship, not to ICANN’s operations. What is represented in ICANN’s bylaws is of less interest to me because I don’t want it to be the One And Only steward. I want ICANN to retain its very limited, focused mission on coordinating global policy for a set of Internet identifiers and protocols. I don’t want it to massively grow its mission as you suggest when you say it should be concerned with “the stable and secure operation of the Internet.” On the matter of a so-called “rigid separation” - it’s my view that if there was ever to be a need to separate the IANA functions from ICANN, it would be because the organisation had truly become dysfunctional. If that was the case, there would be a lot going on - lots of pressure on all participants from the ICANN community, on ICANN staff and governors, and so on. That would be the very last time you would want to have to rally the community around to try and develop new institutions to take the burden away from ICANN. You don’t build plans for bad situations by saying “let’s sort it out if it happens!”. It’s that preventive preparation concept which underpins the validity of the CWG’s proposal with Contract Co, or an external trust. It means that now, under the stability and peace of the current settlement, we put a robust mechanism in place should it be needed. It increases the resilience of the system by not leaving all the eggs in one basket. (It retains the status quo, in other words.) It might be possible to blend approaches wrt an internal trust or golden bylaw so there is an adequate resilience here - Google made a suggestion to that effect with a backup operator concept in their comments to the CWG plan. I don’t know - I assume that’s what the CWG is working on. But it’s sensible to take the status quo position, which I do, without a solid case and proposal being made for why an alternative is better. The argument for getting rid of the external backstop, and forcing the community to rely on a single institution which would be in crisis should this situation ever need resolving, seems to be to be inexplicable and dangerous. It cannot do anything other than pose a threat to the security and stability of the DNS in the long run. It assumes that ICANN can be made perfect. I don’t believe that about any institution. There is a reason that balances of powers and distributed responsibilities are common features of every constitution that governs a state, and of every other governance system that is able to be resilient. [None of this deals with an earlier discussion from the last Singapore ICANN meeting about the desirability of the IANA department becoming, for instance, a wholly owned subsidiary company of ICANN, to give a clearer boundary between the iANA functions operator and ICANN as policy body. That operationally related separation seems to still be in play but I just want to be clear that this discussion isn’t part of it.] On one other point: this is not a transition to the private sector. NTIA is seeking to transition stewardship of the Internet’s DNS to the “global multistakeholder community” as per their comments in their release of 14 March 2014 and all material since. I don’t know why you think that translates to the “private sector” but as a ccTLD manager that blends technical community and civil society perspectives, I know that we in .nz don’t think the private sector is the destination for stewardship. I would be shocked if that was AUDA’s position. Can you please clarify? Is it AUDA’s view that the stewardship of the Internet’s DNS should be transferred to the private sector? On the face of it, that would directly contradict NTIA’s requirements. Finally: your email has the regrettable effect of portraying the orthodox, status quo position I am arguing for as something out of the box, novel and dangerous. I ask that you avoid such characterisations in future, for two reasons. - As set out above, they are not accurate. This discussion is hard enough without participants misleading each other as to the current situation. - Such an approach makes the discussion harder to have, and reduces the likelihood of consensus being achievable once the discussion is over. Without consensus the transition will run aground. See you soon in Singapore. Thanks, Jordan
On 5/02/2015, at 7:47 pm, Paul Szyndler <paul.szyndler@auda.org.au> wrote:
Hi Jordan (and all),
I wanted to follow up on a few exchanges that Jordan and Chris had over the last couple of weeks regarding the work of the CWG on the IANA transition. In particular, I wanted to ask a few questions in order to get a better understanding of the reasons behind InternetNZ’s position and the principles outlined in your submission to the CWG’s consultation.
Among your key principles, there are some that I obviously wouldn’t question – for example, the ongoing independence and policy development responsibilities of ccTLD managers. But there are a few principles upon which you base your position that don’t immediately appear aligned with ICANN’s core mission nor the goals of the NTIA’s intent to transfer the management of the DNS “to the private sector”.
As you know, the fundamental mission of ICANN is to coordinate the stable and secure operation of the Internet. Supporting principles include the introduction of consumer choice and competition, stakeholder participation and the meaningful engagement of other relevant stakeholder bodies and affected parties.
But neither the ICANN Bylaws nor mission statement refer explicitly to Internet NZ’s proposed principles of separability and a distributed model for stewardship. How then, do your proposed principles contribute to ICANN’s ongoing mission, and the resolution of the current transition process? Why are the principles of separability and distributed stewardship afforded such weight? In particular, as a ccTLD manager, what has led you to assume and justify the principles of separability and distributed stewardship, when no such principles existed previously?
My next few questions relate to the fundamental differences of opinion we have exchanged regarding the future of IANA.
Even if the principle of structural separation is to be accepted, why does InternetNZ believe that such a significant and rigid act of separation (establishment of a Contract Co) is required at this stage of ICANN’s evolution? Is it not equally valid to consider that the codified “ability” to separate in the future is an acceptable outcome? Are models, such as a Trust, at least equally capable of delivering a desired result, without issues such as jurisdiction and structure, that are associated with establishing a Contract Co.?
I’d welcome your views – both via email and (inevitably) further discussion when we catch up in Singapore.
Regards,
Paul
Hi Jordan, Thanks for your considered response. Let me take the “easy” question first. No, auDA is not advocating a transfer of IANA management “to the private sector”. I was intentionally quoting the wording used by the NTIA in 1997/8 when it initiated this process. Remnants of that wording remain in the March 2014 announcement that you referred to: “Transitioning NTIA out of its role marks the final phase of the privatization of the DNS as outlined by the U.S. Government in 1997” I was simply seeking to emphasise that the process we are undertaking now is the culmination of an 18 year transition and not an isolated exercise – hence my preference to refer to the historical language. But we should not distract ourselves with linguistic pedantry when there is no disagreement between us about the need for the multi-stakeholder community to inherit this “asset”. On the other issues you raise: · I am concerned about your repeated capitalised references to “One Big ICANN” and “One And Only”, which only serve to cast the organisation as a malevolent entity that cannot be entrusted with the future of IANA. It infers the centralisation of key functions within one entity. More directly, you claim that we support “that what is today distributed among many parties should be more concentrated in the one institution”. This is not a position that has been, or ever will be, advocated by auDA. As a ccTLD manager, we will always support the engagement and empowerment of stakeholders and, above all, the fierce independence of ccTLDs. · Without restating the full proposal, we believe that a “Golden Bylaw” model could potentially avoid complex issues of jurisdiction and the creation and empowerment of new constructs that, until 12 months ago, were unknown to the community. We also then made a subsequent proposal of an Internal Trust as an acknowledgement or concession that some stakeholders would/could not support a solution that would be perceived as fully “internalised”. In the continuum between internal and external solutions, we felt that this was a step towards the middle ground: and such negotiation and consideration of options is critical to an open and full debate. · I note that, as we go back in history, the transition we are debating was the specific reason for ICANN’s establishment. It is here to “manage”, or “hold in Trust” or “execute” a role with regard to the IANA functions. In my previous emails (and auDA submissions), you will note that we have repeatedly sought to emphasise our support for creating a system of accountability, transparency and checks and balances between ICANN (and its Board) and the ongoing management of the IANA function. The principle of “separability” (note: not “separation”) is present throughout. We never infer ownership. I believe our difference of opinion simply arises from the EXTENT to which separability should be codified or, more precisely, the mechanism used to enforce it. · The concepts of a “Golden Bylaw” or “internal Trust” should not be cast as options that advocate taking action, or developing a course of action, only when problems arise. Or, as you suggest, “let’s sort it out when it happens”. Both models propose a delineation between ICANN and the IANA function and mechanisms for recourse should a negative circumstance arise. Both models require further extrapolation and legal advice regarding their applicability. But this is also true for Contract Co. Related to this, I question why you consider it so important to have a standing entity that ‘owns’ the IANA functions and has the power to ‘re-let’ it. Is not the ability to move the function to a different operator the more salient point? In other words, surely the RESULT is the key and all the currently proposed models deliver that result. · At no point did I raise the issue of whether the goals of the CWG should be to either re-enforce or re-invent current mechanisms. We all need to find a solution. Therefore, I find your categorisation of the “status quo” vs “revolution” to be problematic. It is a powerful debating technique that typically draws the support of a majority of stakeholders that prefer continuity to change (I’ve seen enough Australian Federal election campaigns to recognise this!) · You state that the notion of “creating a point of failure with significant power and authority in the Internet's DNS is not one that anyone caring about the security and stability of the system should endorse”. Surely this is precisely what Contract Co would do. We see the evolutionary path that NTIA, ICANN and the community have been heading down for nearly two decades as the USG originally being in control of the IANA function, believing that the control should transition to a multi-stakeholder organisation, setting up ICANN be that organisation and now believing the time is right to finalise the transition. And I would argue that the establishment of an ‘all new’ Contract Co. is a dramatic divergence from that evolutionary path. In conclusion, I wanted to note that the intention of my email was to facilitate a debate on the alternatives that face us. In your message, you inferred that my note may have been “misleading”, the points I made were “surprising and concerning”, that there was a “strangeness” in my assumptions, and that my email may have the “regrettable effect” of misrepresenting the position you advocate. These words (along with your claims about “the status quo”) serve to summarily discredit proposed alternatives. More generally, I am observing a tone in many recent exchanges that suggests a defensiveness regarding the work of the CWG to-date and infers ulterior, disruptive motives on the part of those that raise questions. As ever, I respect your views and your unquestioned right to express them. At no point have I suggested you are being disingenuous and am concerned that you believe I may be. I see our exchange as part of the cut-and-thrust of an open and complex debate – and never anything personal, an attack on a particular entity, not an effort to undermine the CWG. All along, auDA has sought to stimulate debate on a full range of options for the future. Although we have proposed a Trust-based model, we are not advocating it as our preferred solution. It is but one of a range of options. We of the multi-stakeholder community will fail in our respective roles and responsibilities if we do not dutifully assess all possibilities. And with that – I look forward to continuing the conversation in Singapore! Regards, Paul From: Jordan Carter [mailto:jordan@internetnz.net.nz] Sent: Friday, 6 February 2015 10:11 AM To: Paul Szyndler Cc: cctldworld@icann.org; ccnso-members@icann.org; cctldcommunity@cctld-managers.org; cwg-stewardship@icann.org Subject: Re: Questions regarding InternetNZ's views on the IANA transition Hi Paul, all: Thanks for your email. This is an important discussion for our ccTLD community as well as for all those affected by the transition of stewardship away from ICANN. In summary, for those who want the short version: - the principles of distributed stewardship and separability are status quo principles that are in place today. Some seem to want to upend them in favour of One Big ICANN to be the steward of the DNS, and yet such people are claiming black is white, and that those defending the status quo are somehow proposing a revolution. It is the other way around. - these principles are important to the stewardship of the DNS, not to the operation of ICANN per se - but they do have consequences for ICANN operations and structures, as set out below. - we need to conduct this discussion in a way that is accurate, not misleading, and that helps the community towards a consensus rather than driving people apart. Here below the longer version. Paul, there are several surprising and concerning points made in your email, which Greg Shatan’s earlier reply dealt with in part. The most significant strangeness is your assertion that distributed stewardship or separability are new principles. They are not new. They are the status quo. Today, stewardship of the DNS is distributed today: between ccTLD managers, gTLD managers, registrars, ICANN as a policy body, ICANN as the IANA Functions Operator, Verisign as the root zone maintainer, the NTIA as the steward of the system, Internet users as participants and more. Critical to these distributed roles and responsibilities is the independence of many of the players, and the complex web of relationships between them. Separability exists today because the NTIA assigns the right to operate the IANA functions to ICANN via a contract. NTIA could assign those functions to another party: most easily for names, but still with teeth for the other IANA customers. The question is, with NTIA stepping out of its crucial role as a) a component of the distributed stewardship system and b) as the core of separability, the granter of the rights to operate IANA, What should replace it? Our argument is the conservative one: that we should not create a Big Brother of Internet technical coordination by putting it all in ICANN; that we should retain the status quo of distributed stewardship and separability that we have today. In contrast, what those critiquing the status quo seem to be proposing is a very significant revolution. The implicit claim in your note and in the arguments Chris has been advancing is that One Big ICANN is an appropriate outcome: that what is today distributed among many parties should be more concentrated in the one institution. The CWG doesn’t agree, as Greg pointed out. I don’t agree with you. Many others don’t agree. The notion of creating a point of failure with significant power and authority in the Internet’s DNS is not one that anyone caring about the security and stability of the system should endorse. It’s a significant change to the status quo and no argument justifying this change has yet been advanced - other than non-arguments about convenience, or partially . So in terms of the stewardship of the DNS system, that’s where the difference is. You want a narrowing of that responsibility to fewer players. I want to see it remain broad based and external to ICANN. On operations, things are simpler I think. There’s a pretty narrow difference here. We seem to agree on the following points: - ICANN is operating the IANA functions well at the moment - There is no desire to remove IANA from ICANN at the moment - customers should have a key role in oversight of the IANA functions - There should be a way to remove IANA from ICANN should ICANN fail at operating the functions - A decision about separating IANA from ICANN would need to meet high thresholds The point of departure seems to be what vehicle allows for separation should it be required: an internal bylaw, an internal trust, an external trust, an external contract company. That’s an implementation detail in respect of the direct operational question, but it loops back to the broader question of the overall stewardship. An external-to-ICANN option is the status quo and is consistent with the principles we are arguing for. An internal-to-ICANN option is the revolution you propose, and is not consistent with those principles. The principles we set out relate to the transition of stewardship, not to ICANN’s operations. What is represented in ICANN’s bylaws is of less interest to me because I don’t want it to be the One And Only steward. I want ICANN to retain its very limited, focused mission on coordinating global policy for a set of Internet identifiers and protocols. I don’t want it to massively grow its mission as you suggest when you say it should be concerned with “the stable and secure operation of the Internet.” On the matter of a so-called “rigid separation” - it’s my view that if there was ever to be a need to separate the IANA functions from ICANN, it would be because the organisation had truly become dysfunctional. If that was the case, there would be a lot going on - lots of pressure on all participants from the ICANN community, on ICANN staff and governors, and so on. That would be the very last time you would want to have to rally the community around to try and develop new institutions to take the burden away from ICANN. You don’t build plans for bad situations by saying “let’s sort it out if it happens!”. It’s that preventive preparation concept which underpins the validity of the CWG’s proposal with Contract Co, or an external trust. It means that now, under the stability and peace of the current settlement, we put a robust mechanism in place should it be needed. It increases the resilience of the system by not leaving all the eggs in one basket. (It retains the status quo, in other words.) It might be possible to blend approaches wrt an internal trust or golden bylaw so there is an adequate resilience here - Google made a suggestion to that effect with a backup operator concept in their comments to the CWG plan. I don’t know - I assume that’s what the CWG is working on. But it’s sensible to take the status quo position, which I do, without a solid case and proposal being made for why an alternative is better. The argument for getting rid of the external backstop, and forcing the community to rely on a single institution which would be in crisis should this situation ever need resolving, seems to be to be inexplicable and dangerous. It cannot do anything other than pose a threat to the security and stability of the DNS in the long run. It assumes that ICANN can be made perfect. I don’t believe that about any institution. There is a reason that balances of powers and distributed responsibilities are common features of every constitution that governs a state, and of every other governance system that is able to be resilient. [None of this deals with an earlier discussion from the last Singapore ICANN meeting about the desirability of the IANA department becoming, for instance, a wholly owned subsidiary company of ICANN, to give a clearer boundary between the iANA functions operator and ICANN as policy body. That operationally related separation seems to still be in play but I just want to be clear that this discussion isn’t part of it.] On one other point: this is not a transition to the private sector. NTIA is seeking to transition stewardship of the Internet’s DNS to the “global multistakeholder community” as per their comments in their release of 14 March 2014 and all material since. I don’t know why you think that translates to the “private sector” but as a ccTLD manager that blends technical community and civil society perspectives, I know that we in .nz don’t think the private sector is the destination for stewardship. I would be shocked if that was AUDA’s position. Can you please clarify? Is it AUDA’s view that the stewardship of the Internet’s DNS should be transferred to the private sector? On the face of it, that would directly contradict NTIA’s requirements. Finally: your email has the regrettable effect of portraying the orthodox, status quo position I am arguing for as something out of the box, novel and dangerous. I ask that you avoid such characterisations in future, for two reasons. - As set out above, they are not accurate. This discussion is hard enough without participants misleading each other as to the current situation. - Such an approach makes the discussion harder to have, and reduces the likelihood of consensus being achievable once the discussion is over. Without consensus the transition will run aground. See you soon in Singapore. Thanks, Jordan On 5/02/2015, at 7:47 pm, Paul Szyndler <paul.szyndler@auda.org.au> wrote: Hi Jordan (and all), I wanted to follow up on a few exchanges that Jordan and Chris had over the last couple of weeks regarding the work of the CWG on the IANA transition. In particular, I wanted to ask a few questions in order to get a better understanding of the reasons behind InternetNZ’s position and the principles outlined in your submission to the CWG’s consultation. Among your key principles, there are some that I obviously wouldn’t question – for example, the ongoing independence and policy development responsibilities of ccTLD managers. But there are a few principles upon which you base your position that don’t immediately appear aligned with ICANN’s core mission nor the goals of the NTIA’s intent to transfer the management of the DNS “to the private sector”. As you know, the fundamental mission of ICANN is to coordinate the stable and secure operation of the Internet. Supporting principles include the introduction of consumer choice and competition, stakeholder participation and the meaningful engagement of other relevant stakeholder bodies and affected parties. But neither the ICANN Bylaws nor mission statement refer explicitly to Internet NZ’s proposed principles of separability and a distributed model for stewardship. How then, do your proposed principles contribute to ICANN’s ongoing mission, and the resolution of the current transition process? Why are the principles of separability and distributed stewardship afforded such weight? In particular, as a ccTLD manager, what has led you to assume and justify the principles of separability and distributed stewardship, when no such principles existed previously? My next few questions relate to the fundamental differences of opinion we have exchanged regarding the future of IANA. Even if the principle of structural separation is to be accepted, why does InternetNZ believe that such a significant and rigid act of separation (establishment of a Contract Co) is required at this stage of ICANN’s evolution? Is it not equally valid to consider that the codified “ability” to separate in the future is an acceptable outcome? Are models, such as a Trust, at least equally capable of delivering a desired result, without issues such as jurisdiction and structure, that are associated with establishing a Contract Co.? I’d welcome your views – both via email and (inevitably) further discussion when we catch up in Singapore. Regards, Paul
Thanks Paul There is a risk we end up writing long essays here and losing everyone, so I will aim to be brief: - relieved at multistakeholder v private sector clarification - pleased we seem to be on the same page regarding separability & distribute stewardship as enduring principles rather than novel ones, and I am sorry I was so direct and forceful in drawing that out - on separability maybe the difference is how to assure it remaining a live and possible option if required? - I'm interested in the golden bylaw idea - in part I agree with your point about the effects being important not the structure, but the latter has to be able to deliver the former and that's what the discussion is about. I've taken some legal advice on it and am looking forward to the legal review on all options the CWG is preparing to ask for. - my use of debating techniques was in response to yours. It's always easier to have a civilised conversation when talking about commonalities, which we now seem to be doing. - I'm not defensive about the CWG proposal - it wasn't my proposal and I haven't been involved with developing it. What I think is important are the principles we are discussing as they should guide the implementation - not the other way around. I get tetchy when people argue black is white or when principles are ignored in a dive to detail - those are weaknesses, I'll confess. - I don't think *you* are being disingenuous - in my draft of my email I characterised the points about principles and private sector as errors. We are all doing a lot of work very fast and we all make the odd mistake. In this instance we've clarified those. A last thought. USG policy in 1997-98 really mattered and the Internet was a minority pursuit. It is now global and used by about half the population of the planet, and many more countries rely on it in many ways. How much weight should we be putting on a U.S. policy first sketched out twenty years ago to guide our steps today, and into the future? I don't have an answer to that but I think it's worth considering. see you, and others, soon, Jordan On 6 February 2015 at 19:49, Paul Szyndler <paul.szyndler@auda.org.au> wrote:
Hi Jordan,
Thanks for your considered response.
Let me take the "easy" question first.
No, auDA is not advocating a transfer of IANA management "to the private sector".
I was intentionally quoting the wording used by the NTIA in 1997/8 when it initiated this process.
Remnants of that wording remain in the March 2014 announcement that you referred to: "Transitioning NTIA out of its role marks the final phase of the privatization of the DNS as outlined by the U.S. Government in 1997"
I was simply seeking to emphasise that the process we are undertaking now is the culmination of an 18 year transition and not an isolated exercise - hence my preference to refer to the historical language.
But we should not distract ourselves with linguistic pedantry when there is no disagreement between us about the need for the multi-stakeholder community to inherit this "asset".
On the other issues you raise:
· I am concerned about your repeated capitalised references to "One Big ICANN" and "One And Only", which only serve to cast the organisation as a malevolent entity that cannot be entrusted with the future of IANA.
It infers the centralisation of key functions within one entity. More directly, you claim that we support "that what is today distributed among many parties should be more concentrated in the one institution".
This is not a position that has been, or ever will be, advocated by auDA. As a ccTLD manager, we will always support the engagement and empowerment of stakeholders and, above all, the fierce independence of ccTLDs.
· Without restating the full proposal, we believe that a "Golden Bylaw" model could potentially avoid complex issues of jurisdiction and the creation and empowerment of new constructs that, until 12 months ago, were unknown to the community.
We also then made a subsequent proposal of an Internal Trust as an acknowledgement or concession that some stakeholders would/could not support a solution that would be perceived as fully "internalised".
In the continuum between internal and external solutions, we felt that this was a step towards the middle ground: and such negotiation and consideration of options is critical to an open and full debate.
· I note that, as we go back in history, the transition we are debating was the specific reason for ICANN's establishment. It is here to "manage", or "hold in Trust" or "execute" a role with regard to the IANA functions.
In my previous emails (and auDA submissions), you will note that we have repeatedly sought to emphasise our support for creating a system of accountability, transparency and checks and balances between ICANN (and its Board) and the ongoing management of the IANA function.
The principle of "separability" (note: not "separation") is present throughout. We never infer ownership.
I believe our difference of opinion simply arises from the EXTENT to which separability should be codified or, more precisely, the mechanism used to enforce it.
· The concepts of a "Golden Bylaw" or "internal Trust" should not be cast as options that advocate taking action, or developing a course of action, only when problems arise. Or, as you suggest, "let's sort it out when it happens".
Both models propose a delineation between ICANN and the IANA function and mechanisms for recourse should a negative circumstance arise. Both models require further extrapolation and legal advice regarding their applicability. But this is also true for Contract Co.
Related to this, I question why you consider it so important to have a standing entity that 'owns' the IANA functions and has the power to 're-let' it. Is not the ability to move the function to a different operator the more salient point? In other words, surely the RESULT is the key and all the currently proposed models deliver that result.
· At no point did I raise the issue of whether the goals of the CWG should be to either re-enforce or re-invent current mechanisms. We all need to find a solution.
Therefore, I find your categorisation of the "status quo" vs "revolution" to be problematic.
It is a powerful debating technique that typically draws the support of a majority of stakeholders that prefer continuity to change (I've seen enough Australian Federal election campaigns to recognise this!)
· You state that the notion of "creating a point of failure with significant power and authority in the Internet's DNS is not one that anyone caring about the security and stability of the system should endorse". Surely this is precisely what Contract Co would do.
We see the evolutionary path that NTIA, ICANN and the community have been heading down for nearly two decades as the USG originally being in control of the IANA function, believing that the control should transition to a multi-stakeholder organisation, setting up ICANN be that organisation and now believing the time is right to finalise the transition. And I would argue that the establishment of an 'all new' Contract Co. is a dramatic divergence from that evolutionary path.
In conclusion, I wanted to note that the intention of my email was to facilitate a debate on the alternatives that face us.
In your message, you inferred that my note may have been "misleading", the points I made were "surprising and concerning", that there was a "strangeness" in my assumptions, and that my email may have the "regrettable effect" of misrepresenting the position you advocate.
These words (along with your claims about "the status quo") serve to summarily discredit proposed alternatives.
More generally, I am observing a tone in many recent exchanges that suggests a defensiveness regarding the work of the CWG to-date and infers ulterior, disruptive motives on the part of those that raise questions.
As ever, I respect your views and your unquestioned right to express them. At no point have I suggested you are being disingenuous and am concerned that you believe I may be.
I see our exchange as part of the cut-and-thrust of an open and complex debate - and never anything personal, an attack on a particular entity, not an effort to undermine the CWG.
All along, auDA has sought to stimulate debate on a full range of options for the future. Although we have proposed a Trust-based model, we are not advocating it as our preferred solution. It is but one of a range of options.
We of the multi-stakeholder community will fail in our respective roles and responsibilities if we do not dutifully assess all possibilities.
And with that - I look forward to continuing the conversation in Singapore!
Regards,
Paul
*From:* Jordan Carter [mailto:jordan@internetnz.net.nz] *Sent:* Friday, 6 February 2015 10:11 AM *To:* Paul Szyndler *Cc:* cctldworld@icann.org; ccnso-members@icann.org; cctldcommunity@cctld-managers.org; cwg-stewardship@icann.org *Subject:* Re: Questions regarding InternetNZ's views on the IANA transition
Hi Paul, all:
Thanks for your email. This is an important discussion for our ccTLD community as well as for all those affected by the transition of stewardship away from ICANN.
In summary, for those who want the short version:
- the principles of distributed stewardship and separability are status quo principles that are in place today. Some seem to want to upend them in favour of One Big ICANN to be the steward of the DNS, and yet such people are claiming black is white, and that those defending the status quo are somehow proposing a revolution. It is the other way around.
- these principles are important to the stewardship of the DNS, not to the operation of ICANN per se - but they do have consequences for ICANN operations and structures, as set out below.
- we need to conduct this discussion in a way that is accurate, not misleading, and that helps the community towards a consensus rather than driving people apart.
Here below the longer version.
Paul, there are several surprising and concerning points made in your email, which Greg Shatan's earlier reply dealt with in part.
The most significant strangeness is your assertion that distributed stewardship or separability are new principles.
They are not new. They are the status quo.
Today, stewardship of the DNS is distributed today: between ccTLD managers, gTLD managers, registrars, ICANN as a policy body, ICANN as the IANA Functions Operator, Verisign as the root zone maintainer, the NTIA as the steward of the system, Internet users as participants and more. Critical to these distributed roles and responsibilities is the independence of many of the players, and the complex web of relationships between them.
Separability exists today because the NTIA assigns the right to operate the IANA functions to ICANN via a contract. NTIA could assign those functions to another party: most easily for names, but still with teeth for the other IANA customers.
The question is, with NTIA stepping out of its crucial role as
a) a component of the distributed stewardship system and
b) as the core of separability, the granter of the rights to operate IANA,
What should replace it?
Our argument is the conservative one: that we should not create a Big Brother of Internet technical coordination by putting it all in ICANN; that we should *retain the status quo* of distributed stewardship and separability that we have today.
In contrast, what those critiquing the status quo seem to be proposing is a very significant revolution. The implicit claim in your note and in the arguments Chris has been advancing is that One Big ICANN is an appropriate outcome: that what is today distributed among many parties should be more concentrated in the one institution.
The CWG doesn't agree, as Greg pointed out. I don't agree with you. Many others don't agree. The notion of creating a point of failure with significant power and authority in the Internet's DNS is not one that anyone caring about the security and stability of the system should endorse. It's a significant change to the status quo and *no argument justifying this change has yet been advanced* - other than non-arguments about convenience, or partially .
So in terms of the stewardship of the DNS system, that's where the difference is. You want a narrowing of that responsibility to fewer players. I want to see it remain broad based and external to ICANN.
On operations, things are simpler I think. There's a pretty narrow difference here. We seem to agree on the following points:
- ICANN is operating the IANA functions well at the moment
- There is no desire to remove IANA from ICANN at the moment
- customers should have a key role in oversight of the IANA functions
- There should be a way to remove IANA from ICANN should ICANN fail at operating the functions
- A decision about separating IANA from ICANN would need to meet high thresholds
The point of departure seems to be what vehicle allows for separation should it be required: an internal bylaw, an internal trust, an external trust, an external contract company. That's an implementation detail in respect of the direct operational question, but it loops back to the broader question of the overall stewardship. An external-to-ICANN option is the status quo and is consistent with the principles we are arguing for. An internal-to-ICANN option is the revolution you propose, and is not consistent with those principles. The principles we set out relate to the transition of stewardship, not to ICANN's operations.
What is represented in ICANN's bylaws is of less interest to me because I don't want it to be the One And Only steward. I want ICANN to retain its very limited, focused mission on coordinating global policy for a set of Internet identifiers and protocols. I don't want it to massively grow its mission as you suggest when you say it should be concerned with "the stable and secure operation of the Internet."
On the matter of a so-called "rigid separation" - it's my view that if there was ever to be a need to separate the IANA functions from ICANN, it would be because the organisation had truly become dysfunctional. If that was the case, there would be a lot going on - lots of pressure on all participants from the ICANN community, on ICANN staff and governors, and so on.
That would be the very last time you would want to have to rally the community around to try and develop new institutions to take the burden away from ICANN. You don't build plans for bad situations by saying "let's sort it out if it happens!".
It's that preventive preparation concept which underpins the validity of the CWG's proposal with Contract Co, or an external trust. It means that now, under the stability and peace of the current settlement, we put a robust mechanism in place should it be needed. It increases the resilience of the system by not leaving all the eggs in one basket. (It retains the status quo, in other words.)
It might be possible to blend approaches wrt an internal trust or golden bylaw so there is an adequate resilience here - Google made a suggestion to that effect with a backup operator concept in their comments to the CWG plan. I don't know - I assume that's what the CWG is working on. But it's sensible to take the status quo position, which I do, without a solid case and proposal being made for why an alternative is better.
The argument for getting rid of the external backstop, and forcing the community to rely on a single institution which would be in crisis should this situation ever need resolving, seems to be to be inexplicable and dangerous.
It cannot do anything other than pose a threat to the security and stability of the DNS in the long run.
It assumes that ICANN can be made perfect. I don't believe that about any institution. There is a reason that balances of powers and distributed responsibilities are common features of every constitution that governs a state, and of every other governance system that is able to be resilient.
[None of this deals with an earlier discussion from the last Singapore ICANN meeting about the desirability of the IANA department becoming, for instance, a wholly owned subsidiary company of ICANN, to give a clearer boundary between the iANA functions operator and ICANN as policy body. That operationally related separation seems to still be in play but I just want to be clear that this discussion isn't part of it.]
On one other point: this is *not* a transition to the private sector.
NTIA is seeking to transition stewardship of the Internet's DNS to the "global multistakeholder community" as per their comments in their release of 14 March 2014 and all material since. I don't know why you think that translates to the "private sector" but as a ccTLD manager that blends technical community and civil society perspectives, I know that we in .nz don't think the private sector is the destination for stewardship. I would be shocked if that was AUDA's position.
Can you please clarify? Is it AUDA's view that the stewardship of the Internet's DNS should be transferred to the private sector? On the face of it, that would directly contradict NTIA's requirements.
Finally: your email has the regrettable effect of portraying the orthodox, status quo position I am arguing for as something out of the box, novel and dangerous.
I ask that you avoid such characterisations in future, for two reasons.
- As set out above, they are not accurate. This discussion is hard enough without participants misleading each other as to the current situation.
- Such an approach makes the discussion harder to have, and reduces the likelihood of consensus being achievable once the discussion is over. Without consensus the transition will run aground.
See you soon in Singapore.
Thanks,
Jordan
On 5/02/2015, at 7:47 pm, Paul Szyndler <paul.szyndler@auda.org.au> wrote:
Hi Jordan (and all),
I wanted to follow up on a few exchanges that Jordan and Chris had over the last couple of weeks regarding the work of the CWG on the IANA transition.
In particular, I wanted to ask a few questions in order to get a better understanding of the reasons behind InternetNZ's position and the principles outlined in your submission to the CWG's consultation.
Among your key principles, there are some that I obviously wouldn't question - for example, the ongoing independence and policy development responsibilities of ccTLD managers.
But there are a few principles upon which you base your position that don't immediately appear aligned with ICANN's core mission nor the goals of the NTIA's intent to transfer the management of the DNS "to the private sector".
As you know, the fundamental mission of ICANN is to coordinate the stable and secure operation of the Internet.
Supporting principles include the introduction of consumer choice and competition, stakeholder participation and the meaningful engagement of other relevant stakeholder bodies and affected parties.
But neither the ICANN Bylaws nor mission statement refer explicitly to Internet NZ's proposed principles of separability and a distributed model for stewardship.
How then, do your proposed principles contribute to ICANN's ongoing mission, and the resolution of the current transition process? Why are the principles of separability and distributed stewardship afforded such weight?
In particular, as a ccTLD manager, what has led you to assume and justify the principles of separability and distributed stewardship, when no such principles existed previously?
My next few questions relate to the fundamental differences of opinion we have exchanged regarding the future of IANA.
Even if the principle of structural separation is to be accepted, why does InternetNZ believe that such a significant and rigid act of separation (establishment of a Contract Co) is required *at this stage* of ICANN's evolution?
Is it not equally valid to consider that the codified "ability" to separate in the future is an acceptable outcome?
Are models, such as a Trust, at least equally capable of delivering a desired result, without issues such as jurisdiction and structure, that are associated with establishing a Contract Co.?
I'd welcome your views - both via email and (inevitably) further discussion when we catch up in Singapore.
Regards,
Paul
-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *To promote the Internet's benefits and uses, and protect its potential.*
participants (3)
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Greg Shatan -
Jordan Carter -
Paul Szyndler