Minimal = *a. * Smallest in amount or degree. *b. * Small in amount or degree. *c. * Only barely adequate. http://www.thefreedictionary.com/minimal P.S. While I am grateful (as a native English speaker) that English is currently the "lingua franca" for communication here and in many other settings, it really has its weaknesses for that role -- words that sound similar but have opposite meanings, multiple words that mean almost the same thing, too many exceptions to too many rules, etc., etc. Consider that "flammable" and "inflammable" mean the same thing, but "coherent" and "incoherent" mean the opposite. Esperanto anyone? :-) On Thu, Nov 27, 2014 at 7:05 AM, Avri Doria <avri@acm.org> wrote:

On 27-Nov-14 15:17, Seun Ojedeji wrote:

...

...

I think that this should have nothing but staff, a minimal staff of one or> two>

I presume you intend to say MAXIMUM

Well I could have said "at maximum," but i meant that it was a minimal Contract Co. staff with a small number of employees doing the administrative tasks. I don't really want to posit a maximum number, despite thinking it ought to be minimal.

avri

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Additional comment: any formal entity (Contract Co.) brings the recurrent question of where it is incorporated. B. "*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 Thu, Nov 27, 2014 at 2:05 PM, Bertrand de La Chapelle < bdelachapelle@gmail.com> wrote:

Is the idea of a contract Co. a done deal? Establishing any organization with whatever limited staff is usually a recipe for its growth in time.

Is the option of having separate complementary contracts by the different users of the IANA functions off the table?

B.

"*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 Thu, Nov 27, 2014 at 11:43 AM, Avri Doria <avri@acm.org> wrote:

...

Hi,

I think this has exactly a 180 degree wrong approach

• Contract Co. – This is a not for profit company whose only function is to be signatory to the contract with the IANA Functions Operator. As such this entity would have no staff.

I think that this should have nothing but staff, a minimal staff of one or two I.e it should have a neutral Administrator that does what the PRT tells her to do in terms of the contract adminstration, and perhaps a backup/aise. It could also be the Root Zone Management Process Administrator as that is a clerical staff function.

avri

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Hi Bertrand, On Thu, Nov 27, 2014 at 6:35 PM, Bertrand de La Chapelle < bdelachapelle@gmail.com> wrote:

Is the option of having separate complementary contracts by the different users of the IANA functions off the table?

I don't think anything would be off the table yet. Can you explain a few details about this option? Are you suggesting that every registry have a separate contract with the IANA operator; and that if there is ever a need to change the IANA operator, every registry re-contracts the new IANA operator as collectively decided by the community? If I understand what you are suggesting correctly, I'm curious whether the ccTLDs would agree to having a direct contract with the IANA operator; and whether it increases the chances of fragmentation if a subset of the registries decide to contract someone else; and whether the transaction costs of multiple contracts would be lower than the transaction costs of maintaining a company with a single contract?

Dear Bertrand, still on the table so in no way a done deal. The ALAC WG on this topic has other (non contractual) alternative proposals which we are trying to refine. Kind regards, Olivier On 27/11/2014 14:05, Bertrand de La Chapelle wrote:

Is the idea of a contract Co. a done deal? Establishing any organization with whatever limited staff is usually a recipe for its growth in time.

Is the option of having separate complementary contracts by the different users of the IANA functions off the table?

B.

"/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 Thu, Nov 27, 2014 at 11:43 AM, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:

Hi,

I think this has exactly a 180 degree wrong approach

...

• Contract Co. – This is a not for profit company whose only function is to be signatory to the contract with the IANA Functions Operator. As such this entity would have no staff.

I think that this should have nothing but staff, a minimal staff of one or two I.e it should have a neutral Administrator that does what the PRT tells her to do in terms of the contract adminstration, and perhaps a backup/aise. It could also be the Root Zone Management Process Administrator as that is a clerical staff function.

avri

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From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Bertrand de La Chapelle Is the idea of a contract Co. a done deal? Establishing any organization with whatever limited staff is usually a recipe for its growth in time. MM: The idea that there should be a contracting entity separate from ICANN is, I believe, a done deal. It reflects some of the principles we agreed on (such as separability) and the general agreement that, as the draft proposal says, “The current arrangements provided by the NTIA for the oversight and accountability of the IANA Functions are generally satisfactory and the objective of the CWG is to replicate these as faithfully as possible” MM: On the other hand, whether the specific configuration of the Contract Co. is optimal for achieving those purposes could still be open. I would say is still open to _modification_; any modification that accomplishes the agreed objectives but avoids any problems that might arise would be welcomed by the CWG I imagine. Is the option of having separate complementary contracts by the different users of the IANA functions off the table? MM: By “different users of the IANA functions” do you mean the names, protocols and numbers users? If so I would admonish you again to stick to the knitting of this group, which is focused on names. We are not holistically redesigning the IANA arrangements we are focused on the names part exclusively. If by “different users” you mean ccTLDs and gTLDs, it would be possible for this group to contemplate that, but I would not recommend that at this late stage, but because the names root needs to be integrated and because such as drastic change in approach would bust the schedule at this point.

Olivier, I'm not sure exactly what you mean by the "configuration" of Contract Co. We certainly have discussed the "form" the entity would take, i.e., a nonprofit corporation. Place of incorporation has not been significantly discussed in recent days, though we had a number of email exchanges and some discussion of jurisdiction earlier in a variety of contexts. Greg On Fri, Nov 28, 2014 at 6:19 PM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:

On 28/11/2014 16:36, Milton L Mueller wrote:

*From:* cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <cwg-stewardship-bounces@icann.org>] *On Behalf Of *Bertrand de La Chapelle

Is the idea of a contract Co. a done deal? Establishing any organization with whatever limited staff is usually a recipe for its growth in time.

MM: The idea that there should be a contracting entity separate from ICANN is, I believe, a done deal. It reflects some of the principles we agreed on (such as separability) and the general agreement that, as the draft proposal says,

“The current arrangements provided by the NTIA for the oversight and accountability of the IANA Functions are generally satisfactory and the objective of the CWG is to replicate these as faithfully as possible”

This is not at all how I understood it. The discussion on whether the "contracting entity" should be a contract co. or something else has never been touched - certainly no alternatives have been seriously considered.

MM: On the other hand, whether the specific configuration of the Contract Co. is optimal for achieving those purposes could still be open. I would say is still open to _modification_; any modification that accomplishes the agreed objectives but avoids any problems that might arise would be welcomed by the CWG I imagine.

The configuration of the Contract Co. has not been discussed either. We know what functions should be undertaken and what broad characteristics would be needed. No discussion of jurisdiction nor configuration of the entity has been done except on RFP4 call today where we started to touch on it.

Kind regards,

Olivier

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I quite like the current form of the proposal and feel we are headed in the right direction. That said, I can understand why Olivier is upset. We started off with three strawman proposals, which were modular and mix and match, leading to an endless number of permutations to be discussed in Frankfurt. The discussion in Frankfurt started on a good constructive note wherein there appeared to be immediate consensus that IANA should stay in ICANN; eliminating the modular aspects of Strawman 2 & 3 that represented IANA as a subsidiary and IANA as an independent corporation. Then we came to the discussion of the Oversight Body and there appeared to be somewhat of a prolonged disagreement/holdout. After a break, the coordinators completely abandoned the Strawman approach and adopted a new approach, which everybody was slightly unprepared for. This approach was to understand and list down the functions that NTIA performs. This eventually turned into an exercise of faithfully replicating the functions that NTIA performs. Replicating the NTIA functions eventually led to the creation of a PRT, CSC and finally the Contract Co for holding the IANA contract (that NTIA currently holds). People slowly started realising that an exercise to faithfully replicate NTIA automatically eliminates options that diverge from the NTIA model. For example, the non-contractual model that Olivier seems to be arguing in favour of, or the trust-like model that Avri argued for, or the model that Bertrand now suggests, would naturally be eliminated from the discussion. By this time it was the last RFP3 session of the last day of the conference. Participants did object to the creation of Contract Co in the followup sessions on the way ahead. These objections were tackled by saying nothing in final and everything is open to change. I can therefore understand why Olivier is up in arms when he now hears that the Contract Co is final. Funny are the ways of a multi-stakeholder process. In this case, mostly driven by lack of time. Please forgive me if my reading of Frankfurt is shallow. I am not pointing fingers. Given the lack of time that we have had, I think Frankfurt was handled exceptionally well. And I reiterate that I feel that the current proposal is headed in the right direction. I'm just glad i'm not on the other side of the argument. On Sat, Nov 29, 2014 at 6:46 AM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:

Greg,

again, did we ever consider an alternative to creating a corporation? Kind regards,

Olivier

On 29/11/2014 00:32, Greg Shatan wrote:

Olivier,

I'm not sure exactly what you mean by the "configuration" of Contract Co. We certainly have discussed the "form" the entity would take, i.e., a nonprofit corporation. Place of incorporation has not been significantly discussed in recent days, though we had a number of email exchanges and some discussion of jurisdiction earlier in a variety of contexts.

Greg

On Fri, Nov 28, 2014 at 6:19 PM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:

...

On 28/11/2014 16:36, Milton L Mueller wrote:

*From:* cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <cwg-stewardship-bounces@icann.org>] *On Behalf Of *Bertrand de La Chapelle

Is the idea of a contract Co. a done deal? Establishing any organization with whatever limited staff is usually a recipe for its growth in time.

MM: The idea that there should be a contracting entity separate from ICANN is, I believe, a done deal. It reflects some of the principles we agreed on (such as separability) and the general agreement that, as the draft proposal says,

“The current arrangements provided by the NTIA for the oversight and accountability of the IANA Functions are generally satisfactory and the objective of the CWG is to replicate these as faithfully as possible”

This is not at all how I understood it. The discussion on whether the "contracting entity" should be a contract co. or something else has never been touched - certainly no alternatives have been seriously considered.

MM: On the other hand, whether the specific configuration of the Contract Co. is optimal for achieving those purposes could still be open. I would say is still open to _modification_; any modification that accomplishes the agreed objectives but avoids any problems that might arise would be welcomed by the CWG I imagine.

The configuration of the Contract Co. has not been discussed either. We know what functions should be undertaken and what broad characteristics would be needed. No discussion of jurisdiction nor configuration of the entity has been done except on RFP4 call today where we started to touch on it.

Kind regards,

Olivier

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*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*

*666 Third Avenue **ï** New York, NY 10017-5621*

*Direct* 212-885-9253 *| **Main* 212-949-9022

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No, not just Olivier... On November 29, 2014 12:12:35 AM EST, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

Just for the record... It wasn't only Olivier that was of the opinion that we did not look at other options. However I have observed that the "who" (by individual or stakeholder) is saying what is given more preference in considering comments/contributions in this process.

I rest my case for now.

Regards

sent from Google nexus 4 kindly excuse brevity and typos. On 29 Nov 2014 08:23, "Guru Acharya" <gurcharya@gmail.com> wrote:

...

I quite like the current form of the proposal and feel we are headed in the right direction.

That said, I can understand why Olivier is upset.

We started off with three strawman proposals, which were modular and mix and match, leading to an endless number of permutations to be discussed in Frankfurt.

The discussion in Frankfurt started on a good constructive note wherein there appeared to be immediate consensus that IANA should stay in ICANN; eliminating the modular aspects of Strawman 2 & 3 that represented IANA as a subsidiary and IANA as an independent corporation.

Then we came to the discussion of the Oversight Body and there appeared to be somewhat of a prolonged disagreement/holdout.

After a break, the coordinators completely abandoned the Strawman approach and adopted a new approach, which everybody was slightly unprepared for. This approach was to understand and list down the functions that NTIA performs. This eventually turned into an exercise of faithfully replicating the functions that NTIA performs. Replicating the NTIA functions eventually led to the creation of a PRT, CSC and finally the Contract Co for holding the IANA contract (that NTIA currently holds).

People slowly started realising that an exercise to faithfully replicate NTIA automatically eliminates options that diverge from the NTIA model. For example, the non-contractual model that Olivier seems to be arguing in favour of, or the trust-like model that Avri argued for, or the model that Bertrand now suggests, would naturally be eliminated from the discussion.

By this time it was the last RFP3 session of the last day of the conference. Participants did object to the creation of Contract Co in the followup sessions on the way ahead. These objections were tackled by saying nothing in final and everything is open to change.

I can therefore understand why Olivier is up in arms when he now hears that the Contract Co is final.

Funny are the ways of a multi-stakeholder process. In this case, mostly driven by lack of time.

Please forgive me if my reading of Frankfurt is shallow. I am not pointing fingers. Given the lack of time that we have had, I think Frankfurt was handled exceptionally well. And I reiterate that I feel that the current proposal is headed in the right direction. I'm just glad i'm not on the other side of the argument.

On Sat, Nov 29, 2014 at 6:46 AM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:

...

Greg,

again, did we ever consider an alternative to creating a corporation? Kind regards,

Olivier

On 29/11/2014 00:32, Greg Shatan wrote:

Olivier,

I'm not sure exactly what you mean by the "configuration" of Contract Co. We certainly have discussed the "form" the entity would take, i.e., a nonprofit corporation. Place of incorporation has not been significantly discussed in recent days, though we had a number of email exchanges and some discussion of jurisdiction earlier in a variety of contexts.

Greg

On Fri, Nov 28, 2014 at 6:19 PM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:

...

On 28/11/2014 16:36, Milton L Mueller wrote:

*From:* cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <cwg-stewardship-bounces@icann.org>] *On Behalf Of *Bertrand de La Chapelle

Is the idea of a contract Co. a done deal? Establishing any organization with whatever limited staff is usually a recipe for

its growth

...

in time.

MM: The idea that there should be a contracting entity separate from ICANN is, I believe, a done deal. It reflects some of the principles we agreed on (such as separability) and the general agreement that, as the draft proposal says,

“The current arrangements provided by the NTIA for the oversight and accountability of the IANA Functions are generally satisfactory and the objective of the CWG is to replicate these as faithfully as possible”

This is not at all how I understood it. The discussion on whether the "contracting entity" should be a contract co. or something else has never been touched - certainly no alternatives have been seriously considered.

MM: On the other hand, whether the specific configuration of the Contract Co. is optimal for achieving those purposes could still be open. I would say is still open to _modification_; any modification that accomplishes the agreed objectives but avoids any problems that might arise would be welcomed by the CWG I imagine.

The configuration of the Contract Co. has not been discussed either. We know what functions should be undertaken and what broad characteristics would be needed. No discussion of jurisdiction nor configuration of the entity has been done except on RFP4 call today where we started to touch on it.

Kind regards,

Olivier

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*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

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Dear Greg, On 29/11/2014 07:05, Greg Shatan wrote:

It is certainly my recollection that there were some discussions that involved alternatives to creating a corporation (whether another type of legal entity, such as a trust, or a group that had no legal status, such as a committee). It was even suggested that an existing organization, such as the IETF (not a legal entity, actually) or ISOC or the IETF Trust (which exists to hold and license IPR), could be used to contract with the IANA Functions Provider. I think these tended to fall away and did not find traction as we moved along, especially as the use of a contract came to the fore, which required an entity capable of contracting.

I do not recall having a real stab at the alternatives. The "Trust" model was never given a chance to be discussed. Neither was the option of keeping the contracting function within ICANN with internal mechanisms that might create a linked entity like the ASO/NRO using MoUs. A lot of ICANN's model is based on these MoUs. Or a model based on SLA, processes and obligations which automatically trigger remedial processes overseen by a neutral organisation has not been discussed either. Instead, as Guru very correctly described, we ended up with reaching a model of entities which were initially entities in the wider sense of the term (hence avoiding the use of the term "bodies" which could be seen as being a legal entity) and working on the functions of 4 entities. (in addition to the IANA Operator itself) The 4 entities are described on the flowchart as: - IANA Customer Standing Committee (CSC) - IANA Periodic Review Team (PRT) - Independent Appeals Panel for Policy Implementation (IAP) - IANA Contracting Entity They are all marked as "entities" so I never felt that any final decision had been made on whether they would be incorporated. I also applaud Guru's overall description of the Frankfurt meeting. He also points out that multistakeholder models appear to be driven by lack of time. Only this is no small decision that will marginally affect the future of the naming functions. What is designed here needs to withstand the test of time and any future challenges. Designing this by jumping into the first solution without considering other solutions is dangerous - especially when it might well have been the result of Groupthink. During the meeting I saw several warnings being uttered not only by the At-Large participants but also by independent participants as well as ccTLD representatives and others, yet these gained no traction for various reasons which I would not attribute to Groupthink - a good explanation of which can be found on: http://en.wikipedia.org/wiki/Groupthink I would like us to be able to go into this public comment period with a much more open mind and to take our blinders off. 48 hours was too short a time to come up with a final solution and input from our wider communities will no doubt open new perspectives that we will need to give some serious consideration to. Kindest regards, Olivier ps. I have shared scenarios of threats/mitigation with the At-Large working group on IANA issues & will forward them to the list before the deadline today.

Olivier, I think we did look at the "trust" proposal on the email list before Frankfurt. Indeed, I think many of the aspects of the trust proposal have made their way into the current proposal (other than the use of a "trust" entity). Avri points this out in this thread. I think that the current proposal amalgamates aspects of many of the other proposals that were on the table during the course of this proposal. This kind of "magpie" approach is what was expected, and I think it worked. Frankly, 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. As for the entity vs. legal entity issue -- I think we've beaten this to death by now. If we have a contract, we need a legal entity to enter into it with the IANA Functions Operator. So, while it is not a done deal that Contract Co. is a non-profit corporation (though I don't see a better form suggested), it is a done deal in this general structure that Contract Co. is a legal entity. Specifically, there are a number of technical/legal reasons a trust *per se* is ill suited here. There needs to be a Settlor (aka Grantor or Trustmaker) who needs to contribute an already existing piece of property (owned by the Settlor) to the Trust at the time of its formation. The Beneficiary of the trust must be an entity that is capable of taking and holding title to the property (i.e., it must be a legal entity). I've tried to think of ways to make it work, but it just keeps feeling like a square peg in a round hole. (Also keep in mind that a Trust is a legal entity, created in a certain jurisdiction.) Nonetheless, the idea of a lightweight, limited-purpose entity, which originated in the "trust proposal," made its way into the current proposal, as did other aspects of the trust proposal. This should not be viewed as a boxing match between proposals, where it is one or the other. This is a fundamental mischaracterization of the process. Rather, the process should be viewed like a table full of building blocks, where loose pieces (wherever they came from originally) are put in place to fill needs as the proposal comes together. Continuing that analogy, it is less likely that pieces put on the table after the proposal has been built will make their way in, unless they are superior solutions to existing components. Pieces that require the entire proposal to be scrapped and started over are not likely to be looked at as favorably by many at the table (except by their contributors) as they would have been earlier in the process. I'm not saying these are off the table -- but they are not as likely to be picked up from the table. Finally, I would disagree with your characterization of what happened in Frankfurt, except for your statement that "warnings ... gained no traction for various reasons which I would not attribute to Groupthink." I agree this should not be attributed to Groupthink, but rather to legitimate reasons for lack of traction. Further, I think certain warnings not only "gained traction" but contributed to improving the proposal -- which is how this should work. Greg On Sat, Nov 29, 2014 at 4:12 AM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:

Dear Greg,

On 29/11/2014 07:05, Greg Shatan wrote:

...

It is certainly my recollection that there were some discussions that involved alternatives to creating a corporation (whether another type of legal entity, such as a trust, or a group that had no legal status, such as a committee). It was even suggested that an existing organization, such as the IETF (not a legal entity, actually) or ISOC or the IETF Trust (which exists to hold and license IPR), could be used to contract with the IANA Functions Provider. I think these tended to fall away and did not find traction as we moved along, especially as the use of a contract came to the fore, which required an entity capable of contracting.

I do not recall having a real stab at the alternatives. The "Trust" model was never given a chance to be discussed. Neither was the option of keeping the contracting function within ICANN with internal mechanisms that might create a linked entity like the ASO/NRO using MoUs. A lot of ICANN's model is based on these MoUs. Or a model based on SLA, processes and obligations which automatically trigger remedial processes overseen by a neutral organisation has not been discussed either.

Instead, as Guru very correctly described, we ended up with reaching a model of entities which were initially entities in the wider sense of the term (hence avoiding the use of the term "bodies" which could be seen as being a legal entity) and working on the functions of 4 entities. (in addition to the IANA Operator itself) The 4 entities are described on the flowchart as: - IANA Customer Standing Committee (CSC) - IANA Periodic Review Team (PRT) - Independent Appeals Panel for Policy Implementation (IAP) - IANA Contracting Entity

They are all marked as "entities" so I never felt that any final decision had been made on whether they would be incorporated.

I also applaud Guru's overall description of the Frankfurt meeting. He also points out that multistakeholder models appear to be driven by lack of time. Only this is no small decision that will marginally affect the future of the naming functions. What is designed here needs to withstand the test of time and any future challenges. Designing this by jumping into the first solution without considering other solutions is dangerous - especially when it might well have been the result of Groupthink. During the meeting I saw several warnings being uttered not only by the At-Large participants but also by independent participants as well as ccTLD representatives and others, yet these gained no traction for various reasons which I would not attribute to Groupthink - a good explanation of which can be found on: http://en.wikipedia.org/wiki/Groupthink

I would like us to be able to go into this public comment period with a much more open mind and to take our blinders off. 48 hours was too short a time to come up with a final solution and input from our wider communities will no doubt open new perspectives that we will need to give some serious consideration to.

Kindest regards,

Olivier

ps. I have shared scenarios of threats/mitigation with the At-Large working group on IANA issues & will forward them to the list before the deadline today.

-- *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@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>*

Holly, My comments inline. Greg On Sun, Nov 30, 2014 at 2:58 PM, Holly Raiche <h.raiche@internode.on.net> wrote:

Greg and Olivier

What has not been explained is the perceived need to have some kind of Contract Co. My understanding is that the NTIA is looking towards handing its responsibilities for oversight of the IANA functions - now performed under contract (AoC) [GS - No, not the AoC -- the IANA Contract] with ICANN - to ICANN.

GS: I think this is a very fundamental misunderstanding. The NTIA is not looking to hamd its responsibilities to ICANN. It is looking to hand these over to the "global multistakeholder community." Here is what it says in the NTIA's initial press release: [t]he U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) today announces its intent to* transition key Internet domain name functions to the global multistakeholder community*. As the first step, NTIA is asking the Internet Corporation for Assigned Names and Numbers (ICANN) to convene *global stakeholders to develop a proposal to transition the current role played by NTIA* in the coordination of the Internet’s domain name system (DNS). *NTIA’s responsibility includes the procedural role of administering changes to the authoritative root zone file – the database containing the lists of names and addresses of all top-level domains – as well as serving as the historic steward of the DNS. * NTIA currently contracts with ICANN to carry out the Internet Assigned Numbers Authority (IANA) functions and has a Cooperative Agreement with Verisign under which it performs related root zone management functions. *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. Honestly, this is not (and cannot be) about transitioning the NTIA's role to ICANN. I think you will find this reinforced in the ICG's charter and RFP and our group's charter as well. )

Thus, the reason for a contract (and contracting entity of some kind) was that there are two legal organisations - NTIA and ICANN - with a legal agreement between then on which legal organisation performs what functions. If NTIA’s functions are handed over to ICANN, why is there need of another legal organisation? ICANN can simply assume the oversight functions,

GS: ICANN overseeing itself as a replacement for external oversight and accountability is a non-starter for many stakeholder communities. Plus, it seems unworkable to me. I am keen to see increased accountability built into ICANN; while that is "interrelated and interdependent" with the transition of the NTIA's role, it gets beyond our scope (and into the Accountability CWG) when it gets beyond oversight and accountability relating to IANA activities. Focusing solely on broad ICANN accountability does little or nothing to replace the NTIA's role in regards to IANA. .

and make whatever changes are necessary within its structure - including establishment of an entity within it (it already has entities such as SSAC, GNSO ec) with a specific set of oversight functions. And, as Alan suggested, changes could include a good look at By-laws so that there is increased accountability to the community of stakeholders that have very clear and strong interests in a well functioning and responsible ICANN, including its oversight of IANA’s functions. And again, to repeat Alan’s questions, if a new corporate organisation is created, to whom is it accountable, through what mechanisms, and who funds it? (why should ICANN fund a corporate organisation external to itself?)

I still think we should have a good look at the tests that Bertrand sent to the list - and test whether a new structure can deal with those stress tests. Indeed a question whether a new Contract Co could deal with the stress tests better than a reformed ICANN is an open one. Yes, agreed that the pure trust law model doesn’t work. But I do want to understand why a separate legal organisation is necessary when questions of its funding, structure, accountability to all stakeholders haven’t been solved.

GS: A separate legal organization is necessray to enter into contract with ICANN. Testing and refining this proposal should be part of the process (indeed, it is mandated in Section 4 of the RFP), and the process should be iterative. The fact that this proposal hasn't been fully battle tested is no reason to disqualify it -- if that were the case, we would never have a proposal -- the testing is part of the process to get to the proposal. Greg

Holly

On 1 Dec 2014, at 5:50 am, Greg Shatan <gregshatanipc@gmail.com> wrote:

Olivier,

I think we did look at the "trust" proposal on the email list before Frankfurt. Indeed, I think many of the aspects of the trust proposal have made their way into the current proposal (other than the use of a "trust" entity). Avri points this out in this thread.

I think that the current proposal amalgamates aspects of many of the other proposals that were on the table during the course of this proposal. This kind of "magpie" approach is what was expected, and I think it worked. Frankly, 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.

As for the entity vs. legal entity issue -- I think we've beaten this to death by now. If we have a contract, we need a legal entity to enter into it with the IANA Functions Operator. So, while it is not a done deal that Contract Co. is a non-profit corporation (though I don't see a better form suggested), it is a done deal in this general structure that Contract Co. is a legal entity.

Specifically, there are a number of technical/legal reasons a trust *per se* is ill suited here. There needs to be a Settlor (aka Grantor or Trustmaker) who needs to contribute an already existing piece of property (owned by the Settlor) to the Trust at the time of its formation. The Beneficiary of the trust must be an entity that is capable of taking and holding title to the property (i.e., it must be a legal entity). I've tried to think of ways to make it work, but it just keeps feeling like a square peg in a round hole. (Also keep in mind that a Trust is a legal entity, created in a certain jurisdiction.) Nonetheless, the idea of a lightweight, limited-purpose entity, which originated in the "trust proposal," made its way into the current proposal, as did other aspects of the trust proposal.

This should not be viewed as a boxing match between proposals, where it is one or the other. This is a fundamental mischaracterization of the process. Rather, the process should be viewed like a table full of building blocks, where loose pieces (wherever they came from originally) are put in place to fill needs as the proposal comes together. Continuing that analogy, it is less likely that pieces put on the table after the proposal has been built will make their way in, unless they are superior solutions to existing components. Pieces that require the entire proposal to be scrapped and started over are not likely to be looked at as favorably by many at the table (except by their contributors) as they would have been earlier in the process. I'm not saying these are off the table -- but they are not as likely to be picked up from the table.

Finally, I would disagree with your characterization of what happened in Frankfurt, except for your statement that "warnings ... gained no traction for various reasons which I would not attribute to Groupthink." I agree this should not be attributed to Groupthink, but rather to legitimate reasons for lack of traction. Further, I think certain warnings not only "gained traction" but contributed to improving the proposal -- which is how this should work.

Greg

On Sat, Nov 29, 2014 at 4:12 AM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:

...

Dear Greg,

On 29/11/2014 07:05, Greg Shatan wrote:

...

It is certainly my recollection that there were some discussions that involved alternatives to creating a corporation (whether another type of legal entity, such as a trust, or a group that had no legal status, such as a committee). It was even suggested that an existing organization, such as the IETF (not a legal entity, actually) or ISOC or the IETF Trust (which exists to hold and license IPR), could be used to contract with the IANA Functions Provider. I think these tended to fall away and did not find traction as we moved along, especially as the use of a contract came to the fore, which required an entity capable of contracting.

I do not recall having a real stab at the alternatives. The "Trust" model was never given a chance to be discussed. Neither was the option of keeping the contracting function within ICANN with internal mechanisms that might create a linked entity like the ASO/NRO using MoUs. A lot of ICANN's model is based on these MoUs. Or a model based on SLA, processes and obligations which automatically trigger remedial processes overseen by a neutral organisation has not been discussed either.

Instead, as Guru very correctly described, we ended up with reaching a model of entities which were initially entities in the wider sense of the term (hence avoiding the use of the term "bodies" which could be seen as being a legal entity) and working on the functions of 4 entities. (in addition to the IANA Operator itself) The 4 entities are described on the flowchart as: - IANA Customer Standing Committee (CSC) - IANA Periodic Review Team (PRT) - Independent Appeals Panel for Policy Implementation (IAP) - IANA Contracting Entity

They are all marked as "entities" so I never felt that any final decision had been made on whether they would be incorporated.

I also applaud Guru's overall description of the Frankfurt meeting. He also points out that multistakeholder models appear to be driven by lack of time. Only this is no small decision that will marginally affect the future of the naming functions. What is designed here needs to withstand the test of time and any future challenges. Designing this by jumping into the first solution without considering other solutions is dangerous - especially when it might well have been the result of Groupthink. During the meeting I saw several warnings being uttered not only by the At-Large participants but also by independent participants as well as ccTLD representatives and others, yet these gained no traction for various reasons which I would not attribute to Groupthink - a good explanation of which can be found on: http://en.wikipedia.org/wiki/Groupthink

I would like us to be able to go into this public comment period with a much more open mind and to take our blinders off. 48 hours was too short a time to come up with a final solution and input from our wider communities will no doubt open new perspectives that we will need to give some serious consideration to.

Kindest regards,

Olivier

ps. I have shared scenarios of threats/mitigation with the At-Large working group on IANA issues & will forward them to the list before the deadline today.

-- *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@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>* _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@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@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>*

Holly: My further responses are below. Greg On Sun, Nov 30, 2014 at 4:33 PM, Holly Raiche <h.raiche@internode.on.net> wrote:

Greg

Thanks for this - and my questions back to you interspersed On 1 Dec 2014, at 7:27 am, Greg Shatan <gregshatanipc@gmail.com> wrote:

Holly,

My comments inline.

Greg

On Sun, Nov 30, 2014 at 2:58 PM, Holly Raiche <h.raiche@internode.on.net> wrote:

...

Greg and Olivier

What has not been explained is the perceived need to have some kind of Contract Co. My understanding is that the NTIA is looking towards handing its responsibilities for oversight of the IANA functions - now performed under contract (AoC) [GS - No, not the AoC -- the IANA Contract] with ICANN - to ICANN.

You’re absolutely correct - sorry

...

GS: I think this is a very fundamental misunderstanding. The NTIA is not looking to hamd its responsibilities to ICANN. It is looking to hand these over to the "global multistakeholder community." Here is what it says in the NTIA's initial press release:

[t]he U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) today announces its intent to* transition key Internet domain name functions to the global multistakeholder community*. As the first step, NTIA is asking the Internet Corporation for Assigned Names and Numbers (ICANN) to convene *global stakeholders to develop a proposal to transition the current role played by NTIA* in the coordination of the Internet’s domain name system (DNS).

*NTIA’s responsibility includes the procedural role of administering changes to the authoritative root zone file – the database containing the lists of names and addresses of all top-level domains – as well as serving as the historic steward of the DNS. * NTIA currently contracts with ICANN to carry out the Internet Assigned Numbers Authority (IANA) functions and has a Cooperative Agreement with Verisign under which it performs related root zone management functions. *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. Honestly, this is not (and cannot be) about transitioning the NTIA's role to ICANN. I think you will find this reinforced in the ICG's charter and RFP and our group's charter as well. )

One way of looking at the statement is that ICANN already encompasses those stakeholders globally that are involved in the functions of IANA.

I don't think that you can read that into the NTIA statement. I do think that this is a position some might take with regard to ICANN generally. I think it is a flawed position for a number of reasons. First, "ICANN the corporation" needs to be distinguished from "ICANN the community." The first is the IANA Functions Operator, the second encompasses stakeholders. Handing over anything to ICANN the corporation is certainly not synonymous with handing it over to the global multistakeholder community. Second, I think it is dangerous to assume that all stakeholders are encompassed by ICANN. For starters, the relationship of the ccTLDs to ICANN varies wildly by ccTLD, and many would be uneasy at being considered "encompassed" by ICANN. As the composition of the ICG shows, there are other stakeholders concerned with names that are outside ICANN's orbit.

I think we all have looked at the IANA functions being ‘handed over’ as including the numbering, the protocols and the names.

Again, I think this a fundamental misconception on two levels. First, it is not the "IANA functions" that are being handed over. The IANA functions are being performed by the IANA Functions Operator -- currently the IANA group at ICANN. NTIA's roles relating to the IANA functions -- approval, oversight, etc. -- are what is being handed over. Second, while it is true that holistically, the NTIA currently performs its roles in relation to names, numbers and protocol parameters, our remit is to provide a proposal for replacing NTIA's role with regard to names. Logically, the numbering function is best handed over to the structure now

in place that already handles this function well - the ASO/RIRs.

Again, it is not the "numbering function" that is being handed over, it is NTIA's oversight role relating to numbers. That aside, they have existing organizations that are not ICANN that can be used for that oversight function. Names does not have that.

My view has been that, as long as there is increased accountability through mechanisms such as regular and public reporting to the community, plus a mechanism if the functions are not being carried out well, the existing structure is fine.

The "existing structure" involves NTIA. So, the existing structure will soon cease to exist.

Similarly, the IETF does work for protocols. Granted they want no change, whereas others would like more transparency and accountability in the protocols area - which could be worked through. That leaves names - which is what this set of issues is about. And I think there is at least consensus that the names functions performed by ICANN can have a good hard look, more accountability, and a mechanism of some sort if the community - made up of all the stakeholders - does not agree with directions threatened.

That is all well and good, but if it doesn't focus on accountability for, and oversight of, ICANN's performance of the *IANA* "names functions", that is beyond our scope and goes into the CWG on Accountability. As stated before, our work is interrelated and interdependent with the CWG on Accountability, and especially "Stream 1" of their work. We are not minimizing accountability, but we can't steal their brief.

...

Thus, the reason for a contract (and contracting entity of some kind) was that there are two legal organisations - NTIA and ICANN - with a legal agreement between then on which legal organisation performs what functions. If NTIA’s functions are handed over to ICANN, why is there need of another legal organisation? ICANN can simply assume the oversight functions,

GS: ICANN overseeing itself as a replacement for external oversight and accountability is a non-starter for many stakeholder communities.

As it now exists, I think there is general agreement that real and deep reform at the least is necessary.

Right church, wrong pew. That is the remit of the CWG on Accountability. I understand the issue of "leverage," but we can't blast our scope to smithereens in order to use that leverage. We also can't adopt an "ICANN internal" solution just because it gives us the shortest path to using that leverage. The proposal needs to stand on its own merits. I'll go back to the "interrelated and interdependent" point to show us the way on using that leverage for larger purposes.

Plus, it seems unworkable to me. I am keen to see increased accountability built into ICANN; while that is "interrelated and interdependent" with the transition of the NTIA's role, it gets beyond our scope (and into the Accountability CWG) when it gets beyond oversight and accountability relating to IANA activities. Focusing solely on broad ICANN accountability does little or nothing to replace the NTIA's role in regards to IANA.

I’m now thinking of the three types of functions of IANA - are you suggesting that a proposed Contract Co would have oversight of the numbering, protocols and naming functions? I don’t think the numbering and protocols stakeholders think that is necessary

I'm not suggesting that at all. Again, that would be beyond our remit. Our job is to put out a plan for numbers -- full stop. On the other hand, it is far from clear to me how numbers and protocols will replace the duties, obligations and performance standards that ICANN must adhere to because they are set out in the contract. Maybe the contents of the contract is far less important to numbers and protocols, but that can't be said for number.

.

...

and make whatever changes are necessary within its structure - including establishment of an entity within it (it already has entities such as SSAC, GNSO ec) with a specific set of oversight functions. And, as Alan suggested, changes could include a good look at By-laws so that there is increased accountability to the community of stakeholders that have very clear and strong interests in a well functioning and responsible ICANN, including its oversight of IANA’s functions. And again, to repeat Alan’s questions, if a new corporate organisation is created, to whom is it accountable, through what mechanisms, and who funds it? (why should ICANN fund a corporate organisation external to itself?)

I still think we should have a good look at the tests that Bertrand sent to the list - and test whether a new structure can deal with those stress tests. Indeed a question whether a new Contract Co could deal with the stress tests better than a reformed ICANN is an open one. Yes, agreed that the pure trust law model doesn’t work. But I do want to understand why a separate legal organisation is necessary when questions of its funding, structure, accountability to all stakeholders haven’t been solved.

GS: A separate legal organization is necessray to enter into contract with ICANN. Testing and refining this proposal should be part of the process (indeed, it is mandated in Section 4 of the RFP), and the process should be iterative. The fact that this proposal hasn't been fully battle tested is no reason to disqualify it -- if that were the case, we would never have a proposal -- the testing is part of the process to get to the proposal.

I think you are back to my basic question and the assumption that the transition cannot be about ICANN oversight of IANA functions. But ICANN does so now. Yes, under contract.

You are looking at the wrong end of the contract. We want ICANN to continue doing what it is doing. And they do it at least in part because they are contractually obligated to do so. You would be asking ICANN to do what NTIA is doing -- something ICANN doesn't do now, and which would wipe out ICANN's contractual obligation to perform certain functions up to certain standards and under certain conditions.

What the contract does in the eyes of many stakeholders is provide a mechanism of last resort if anything goes wrong - i.e., some kind of safety net. So what is really being sought is a replacement structure that can be a safety net.

This safety net (or "backstop") function is one of the things the contract does, but it is not the only thing the contract does. In our work, we identified a number of functional responsibilities that NTIA carries out. These cannot be ignored, and need to be replaced (or very good explanations of why they don't be need to be offered).

The answer you are postulating is a separate legal organisation - funded by whom, with what powers - given by whom - to do what.

I think answers to your question about what Contract Co. would do and what powers it would have (primarily by means of or under instruction from the Multistakeholder Review Team) are contained in the proposal. As to who will give it those powers -- these powers are the powers that NTIA is looking to transition, so the answer is fairly simple: the NTIA will transition those powers to Contract Co. Funding is an area we need to develop, and various concepts have been discussed, but they need further work. But given that Contract Co. is performing a service of value, and that it is granting to ICANN various rights that have value, I doubt that this issue is insurmountable. Oversight by anyone is going to come at a cost -- even internal ICANN oversight.

I think you are also assuming that the NTIA would then cancel its contract (in relation to names only - or names, protocols and numbers) with ICANN and contract with Contract Co?

No, I am assuming quite the opposite. First, your question seems to assume that the NTIA is staying involved in some fashion. That is clearly not the case, regardless of the community and regardless of the solution. The whole point of this transition is that NTIA is disappearing from the IANA scene entirely and with finality. So, no, I am not assuming that NTIA would contract with Contract Co. Second, your question seems to misperceive what Contract Co. is intended to be -- it is intended to be a replacement for the NTIA as the contracting party with ICANN in ICANN's role as the IANA Functions Operator, not an entity to act as the IANA Functions Operator (or to serve as a middleman between the NTIA and ICANN). So, again, there is no way that NTIA would contract with Contract Co. What I am assuming (and I believe I am far from alone in this), is that the NTIA, effective on September 30, 2015 (the end of the current term of its contract with ICANN), will transfer to Contract Co. the right to allow others (initially ICANN) to perform the IANA Functions as the IANA Functions Operator, and that Contract Co. will enter into a new "IANA Contract" (initially) with CIANN to perform the IANA Functions as the IANA Functions Operator. Greg

Holly

Greg

...

Holly

On 1 Dec 2014, at 5:50 am, Greg Shatan <gregshatanipc@gmail.com> wrote:

Olivier,

I think we did look at the "trust" proposal on the email list before Frankfurt. Indeed, I think many of the aspects of the trust proposal have made their way into the current proposal (other than the use of a "trust" entity). Avri points this out in this thread.

I think that the current proposal amalgamates aspects of many of the other proposals that were on the table during the course of this proposal. This kind of "magpie" approach is what was expected, and I think it worked. Frankly, 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.

As for the entity vs. legal entity issue -- I think we've beaten this to death by now. If we have a contract, we need a legal entity to enter into it with the IANA Functions Operator. So, while it is not a done deal that Contract Co. is a non-profit corporation (though I don't see a better form suggested), it is a done deal in this general structure that Contract Co. is a legal entity.

Specifically, there are a number of technical/legal reasons a trust *per se* is ill suited here. There needs to be a Settlor (aka Grantor or Trustmaker) who needs to contribute an already existing piece of property (owned by the Settlor) to the Trust at the time of its formation. The Beneficiary of the trust must be an entity that is capable of taking and holding title to the property (i.e., it must be a legal entity). I've tried to think of ways to make it work, but it just keeps feeling like a square peg in a round hole. (Also keep in mind that a Trust is a legal entity, created in a certain jurisdiction.) Nonetheless, the idea of a lightweight, limited-purpose entity, which originated in the "trust proposal," made its way into the current proposal, as did other aspects of the trust proposal.

This should not be viewed as a boxing match between proposals, where it is one or the other. This is a fundamental mischaracterization of the process. Rather, the process should be viewed like a table full of building blocks, where loose pieces (wherever they came from originally) are put in place to fill needs as the proposal comes together. Continuing that analogy, it is less likely that pieces put on the table after the proposal has been built will make their way in, unless they are superior solutions to existing components. Pieces that require the entire proposal to be scrapped and started over are not likely to be looked at as favorably by many at the table (except by their contributors) as they would have been earlier in the process. I'm not saying these are off the table -- but they are not as likely to be picked up from the table.

Finally, I would disagree with your characterization of what happened in Frankfurt, except for your statement that "warnings ... gained no traction for various reasons which I would not attribute to Groupthink." I agree this should not be attributed to Groupthink, but rather to legitimate reasons for lack of traction. Further, I think certain warnings not only "gained traction" but contributed to improving the proposal -- which is how this should work.

Greg

On Sat, Nov 29, 2014 at 4:12 AM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:

...

Dear Greg,

On 29/11/2014 07:05, Greg Shatan wrote:

...

It is certainly my recollection that there were some discussions that involved alternatives to creating a corporation (whether another type of legal entity, such as a trust, or a group that had no legal status, such as a committee). It was even suggested that an existing organization, such as the IETF (not a legal entity, actually) or ISOC or the IETF Trust (which exists to hold and license IPR), could be used to contract with the IANA Functions Provider. I think these tended to fall away and did not find traction as we moved along, especially as the use of a contract came to the fore, which required an entity capable of contracting.

I do not recall having a real stab at the alternatives. The "Trust" model was never given a chance to be discussed. Neither was the option of keeping the contracting function within ICANN with internal mechanisms that might create a linked entity like the ASO/NRO using MoUs. A lot of ICANN's model is based on these MoUs. Or a model based on SLA, processes and obligations which automatically trigger remedial processes overseen by a neutral organisation has not been discussed either.

Instead, as Guru very correctly described, we ended up with reaching a model of entities which were initially entities in the wider sense of the term (hence avoiding the use of the term "bodies" which could be seen as being a legal entity) and working on the functions of 4 entities. (in addition to the IANA Operator itself) The 4 entities are described on the flowchart as: - IANA Customer Standing Committee (CSC) - IANA Periodic Review Team (PRT) - Independent Appeals Panel for Policy Implementation (IAP) - IANA Contracting Entity

They are all marked as "entities" so I never felt that any final decision had been made on whether they would be incorporated.

I also applaud Guru's overall description of the Frankfurt meeting. He also points out that multistakeholder models appear to be driven by lack of time. Only this is no small decision that will marginally affect the future of the naming functions. What is designed here needs to withstand the test of time and any future challenges. Designing this by jumping into the first solution without considering other solutions is dangerous - especially when it might well have been the result of Groupthink. During the meeting I saw several warnings being uttered not only by the At-Large participants but also by independent participants as well as ccTLD representatives and others, yet these gained no traction for various reasons which I would not attribute to Groupthink - a good explanation of which can be found on: http://en.wikipedia.org/wiki/Groupthink

I would like us to be able to go into this public comment period with a much more open mind and to take our blinders off. 48 hours was too short a time to come up with a final solution and input from our wider communities will no doubt open new perspectives that we will need to give some serious consideration to.

Kindest regards,

Olivier

ps. I have shared scenarios of threats/mitigation with the At-Large working group on IANA issues & will forward them to the list before the deadline today.

-- *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@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>* _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@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@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>*

-- *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@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>*

On 28-Nov-14 19:36, Milton L Mueller wrote:

Is the option of having separate complementary contracts by the different users of the IANA functions off the table?

MM: By “different users of the IANA functions” do you mean the names, protocols and numbers users? If so I would admonish you again to stick to the knitting of this group, which is focused on names. We are not holistically redesigning the IANA arrangements we are focused on the names part exclusively.

In fact the ICG has done its best to make sure we don't have complementary solutions as the first decision they made on how the process and hence solution should be designed. It is a coordinators' decision that seems to have been made that most all have just accepted. avri

All,First, I want to appreciate the hard and excellent job done so far by the CWG. The proposal and processes laid out are so very good.  However, I wish to raise one or two issues.  I wish to support most of the concerns expressed by Alan Greenberg and his thoughtful suggestions. Specifically:Contract Co:  the jurisdictional questions as had been raised in this thread makes it less attractive as the way to go.  Question: Is this a multi-stakeholder entity?  General acceptability by the internet community may be difficult to sell considering the heightened awareness in most governments ( ie ccTLDs) regarding the IANA relationship and the position of NTIA in representing governments in the functions.I believe a less legal formal entity operating a bottom up process would  not only meet the NTIA requirements but also give the internet community the opportunity to be part of the MoU agreement with IANA functions Operator.Question:Who is the ultimate supervisor (Regulator) of this entity? - US government? Alteration of ICANN Bylaws It would be worth the while exploring further Allan's suggestions. I wish to suggest a small addition of reducing the ICANN Board membership tenor to one term of 2years only, instead of current 9years and counting that members seat on the Board. One may argue on continuity, however since policies would be made at the ACs, SOs and also national levels by ccTLDs the Board would implement such policies.  This is somehow close to what IETF does with IANA functions operator. To me, the current proposal seems over blotted. Let the contract be replaced by MoU between the IANA operator and the affected and interested persons of the services rendered by IANA. Let the mechanism  be multi-stakeholder in approach and form.  Rotate membership of Board on 2-yrly basis.  Let there be an independent evaluator for IANA core functions and report submitted to the PRT (Steering Committee on IANA Function) as proposed, including ICANN itself.My second point is on the CSC. I think this should be just a subcommittee of PRT. Participants of CSC  should not be only those that can pay for themselves. Again full automation of IANA functions would surely reduce the burden of this committee. Mary Uduma On Saturday, November 29, 2014 6:55 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: It's not quite as black and white as that.  The RFP does suggest some level of communication (though not necessarily coordination) between the different communities, which we should probably consider.  While we are not supposed to be designing a holistic solution, this is not some sort of "locked room" exercise either. Greg On Fri, Nov 28, 2014 at 10:13 PM, Avri Doria <avri@acm.org> wrote: On 28-Nov-14 19:36, Milton L Mueller wrote: Is the option of having separate complementary contracts by the different users of the IANA functions off the table? MM: By “different users of the IANA functions” do you mean the names, protocols and numbers users? If so I would admonish you again to stick to the knitting of this group, which is focused on names. We are not holistically redesigning the IANA arrangements we are focused on the names part exclusively. In fact the ICG has done its best to make sure we don't have complementary solutions as the first decision they made on how the process and hence solution should be designed. It is a coordinators' decision that seems to have been made that most all have just accepted. avri _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Gregory S. Shatan ï Abelman Frayne & Schwab666 Third Avenue ï New York, NY 10017-5621Direct  212-885-9253 | Main 212-949-9022Fax  212-949-9190 | Cell 917-816-6428gsshatan@lawabel.comICANN-related: gregshatanipc@gmail.com www.lawabel.com _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

Good evening: I think at this stage in proceedings there is NO 'done deal'. CWG is preparing an hopefully - but not necessarily - unique proposal to the ICG. Nothing more. In that context, some of us may have come across the recent IETF draft response to ICG (pp 19 + Annexes) at: https://tools.ietf.org/html/draft-ietf-ianaplan-icg-response-03 The IETF Response is, inter alia, "No major changes are required" (twice). Since I have no particular brief for the IETF (except that it's them that what's done it - the Internet), I offer this only as evidence that ICG will have work to do and that the current battle-royal in CWG is rather besides the point. Regards CW On 29 Nov 2014, at 19:09, Milton L Mueller <mueller@syr.edu> wrote:

Mary, Appreciate your comments but I cannot make sense of some of your arguments. Specifically,

Contract Co: the jurisdictional questions as had been raised in this thread makes it less attractive as the way to go.

MM: I’m sorry, but this doesn’t make any sense to me. There is no avoidance of jurisdictional issues. If there is no Contract Co. and ICANN controls the whole process directly, which is want Olivier and Alan want, then the jurisdiction is the United States. Decisions _must_ be made about jurisdiction, and the creation of a Contract Co. actually gives us more flexibility about this than the status quo. Let me also remind you that with the U.S. Congress looking over NTIA and a lame-duck Presidency, altering the jurisdiction of ICANN itself is simply not feasible at this juncture.

Question: Is this a multi-stakeholder entity?

MM: The answer is simple. Yes. Contract Co. gets its instructions directly from PRT, which is multistakeholder.

General acceptability by the internet community may be difficult to sell considering the heightened awareness in most governments ( ie ccTLDs) regarding the IANA relationship and the position of NTIA in representing governments in the functions.

MM: I think you are fundamentally misunderstanding the proposal before us. Contract Co is just a shell that does what the PRT tells it to do. If you are looking at it as some kind of

I believe a less legal formal entity operating a bottom up process would not only meet the NTIA requirements but also give the internet community the opportunity to be part of the MoU agreement with IANA functions Operator.

MM: I don’t understand this. PRT is representative of the Internet community. What is the difference between an MoU and a contract, except that an MoU is legally weaker and less separable?

Who is the ultimate supervisor (Regulator) of this entity? - US government?

MM: Again I do not understand where you are coming from and think that you may be fundamentally misunderstanding the proposal. The whole point of this proposal is to get the unilateral authority of the US government out of the system completely. _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

Alissa: But I would strongly prefer a sole solution to the transition. Because of the practical constraints on multistakeholder oversight of IANA and ICANN. (Several IANAs - NO). If IETF is arguing only for their own bailiwick, then I might part company … CW ç On 29 Nov 2014, at 21:57, Alissa Cooper <alissa@cooperw.in> wrote:

As mentioned earlier in the thread, the IETF draft is focused on protocol parameters. It does not make any suggestions for transition plans for names or numbers.

Alissa

On Nov 29, 2014, at 11:44 AM, Christopher Wilkinson <lists@christopherwilkinson.eu> wrote:

...

Good evening:

I think at this stage in proceedings there is NO 'done deal'. CWG is preparing an hopefully - but not necessarily - unique proposal to the ICG. Nothing more.

In that context, some of us may have come across the recent IETF draft response to ICG (pp 19 + Annexes) at:

https://tools.ietf.org/html/draft-ietf-ianaplan-icg-response-03

The IETF Response is, inter alia, "No major changes are required" (twice).

Since I have no particular brief for the IETF (except that it's them that what's done it - the Internet), I offer this only as evidence that ICG will have work to do and that the current battle-royal in CWG is rather besides the point.

Regards

CW

On 29 Nov 2014, at 19:09, Milton L Mueller <mueller@syr.edu> wrote:

...

Mary, Appreciate your comments but I cannot make sense of some of your arguments. Specifically,

Contract Co: the jurisdictional questions as had been raised in this thread makes it less attractive as the way to go.

MM: I’m sorry, but this doesn’t make any sense to me. There is no avoidance of jurisdictional issues. If there is no Contract Co. and ICANN controls the whole process directly, which is want Olivier and Alan want, then the jurisdiction is the United States. Decisions _must_ be made about jurisdiction, and the creation of a Contract Co. actually gives us more flexibility about this than the status quo. Let me also remind you that with the U.S. Congress looking over NTIA and a lame-duck Presidency, altering the jurisdiction of ICANN itself is simply not feasible at this juncture.

Question: Is this a multi-stakeholder entity?

MM: The answer is simple. Yes. Contract Co. gets its instructions directly from PRT, which is multistakeholder.

General acceptability by the internet community may be difficult to sell considering the heightened awareness in most governments ( ie ccTLDs) regarding the IANA relationship and the position of NTIA in representing governments in the functions.

MM: I think you are fundamentally misunderstanding the proposal before us. Contract Co is just a shell that does what the PRT tells it to do. If you are looking at it as some kind of

I believe a less legal formal entity operating a bottom up process would not only meet the NTIA requirements but also give the internet community the opportunity to be part of the MoU agreement with IANA functions Operator.

MM: I don’t understand this. PRT is representative of the Internet community. What is the difference between an MoU and a contract, except that an MoU is legally weaker and less separable?

Who is the ultimate supervisor (Regulator) of this entity? - US government?

MM: Again I do not understand where you are coming from and think that you may be fundamentally misunderstanding the proposal. The whole point of this proposal is to get the unilateral authority of the US government out of the system completely. _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

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Thank you Milton for responding to my comments.See my further comments below On Saturday, November 29, 2014 7:09 PM, Milton L Mueller <mueller@syr.edu> wrote: #yiv9010763369 #yiv9010763369 -- _filtered #yiv9010763369 {panose-1:2 4 5 3 5 4 6 3 2 4;} _filtered #yiv9010763369 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;} _filtered #yiv9010763369 {font-family:Verdana;panose-1:2 11 6 4 3 5 4 4 2 4;} _filtered #yiv9010763369 {font-family:Consolas;panose-1:2 11 6 9 2 2 4 3 2 4;}#yiv9010763369 #yiv9010763369 p.yiv9010763369MsoNormal, #yiv9010763369 li.yiv9010763369MsoNormal, #yiv9010763369 div.yiv9010763369MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv9010763369 a:link, #yiv9010763369 span.yiv9010763369MsoHyperlink {color:blue;text-decoration:underline;}#yiv9010763369 a:visited, #yiv9010763369 span.yiv9010763369MsoHyperlinkFollowed {color:purple;text-decoration:underline;}#yiv9010763369 pre {margin:0in;margin-bottom:.0001pt;font-size:10.0pt;}#yiv9010763369 span {}#yiv9010763369 span.yiv9010763369HTMLPreformattedChar {font-family:Consolas;}#yiv9010763369 span.yiv9010763369hoenzb {}#yiv9010763369 span.yiv9010763369EmailStyle21 {color:#1F497D;}#yiv9010763369 .yiv9010763369MsoChpDefault {} _filtered #yiv9010763369 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv9010763369 div.yiv9010763369WordSection1 {}#yiv9010763369 Mary, Appreciate your comments but I cannot make sense of some of your arguments. Specifically,   Contract Co:  the jurisdictional questions as had been raised in this thread makes it less attractive as the way to go.    MM: I’m sorry, but this doesn’t make any sense to me. There is no avoidance of jurisdictional issues. If there is no Contract Co. and ICANN controls the whole process directly, which is want Olivier and Alan want, then the jurisdiction is the United States. Decisions _must_ be made about jurisdiction, and the creation of a Contract Co. actually gives us more flexibility about this than the status quo. Let me also remind you that with the U.S. Congress looking over NTIA and a lame-duck Presidency, altering the jurisdiction of ICANN itself is simply not feasible at this juncture.   Mary: Exactly  my point, we should not create another corporation in the US rather deal with the existing ones and have a truly multi-stakeholder  body to replace the NTIA stewardship position.  I do not agree  with you that the Internet Community needs a parallel ICANN for the IANA functions.  I believe that changes should be minimal since it is working well. Question: Is this a multi-stakeholder entity?    MM: The answer is simple. Yes. Contract Co. gets its instructions directly from PRT, which is multistakeholder.  Mary: It does not still make it a truly Multi-stakeholder entity. PRT  I can understand, perhaps, it might be helpful for you to explain further how Contract Co will function without  a Board, Directors or Staff. who will answer to the licensing/registering authority?  Are there no minimal requirements for incorporating a Co? What of the Bylaws for Registration? .   General acceptability by the internet community may be difficult to sell considering the heightened awareness in most governments ( ie ccTLDs) regarding the IANA relationship and the position of NTIA in representing governments in the functions.   MM: I think you are fundamentally misunderstanding the proposal before us. Contract Co is just a shell that does what the PRT tells it to do. If you are looking at it as some kind of Mary: Would promoters of the corporation come from the mutli-stakholders (acting on equal footing) of the  internet community?    I believe a less legal formal entity operating a bottom up process would  not only meet the NTIA requirements but also give the internet community the opportunity to be part of the MoU agreement with IANA functions Operator.   MM: I don’t understand this. PRT is representative of the Internet community. What is the difference between an MoU and a contract, except that an MoU is legally weaker and less separable?  Mary: PRT is not Contract Co. I believe PRT  can serve as a replacement of  NTIA with  a legally  weaker Agreement in order to  promote the true Multi-stakeholder entity. Who is the ultimate supervisor (Regulator) of this entity? - US government?   MM: Again I do not understand where you are coming from and think that you may be fundamentally misunderstanding the proposal. The whole point of this proposal is to get the unilateral authority of the US government out of the system completely. Mary:  I am sorry if I do not understand the proposal, but it seems to me that we are creating another ICANN in the name of Contract Co. There are some unanswered questions regarding the Contract  Co that need further clarifications.  An MoU  between the Multistakeholder entity and the IANA operator would serve our purpose of getting the unilateral authority of the US government out and the authority of the  internet community in. My views. Mary Uduma

Thank you Milton for your further clarification. I am convinced that the CWG will continue to refine the proposal taking into account the concerns raised and misconception the current version poses. BR. Mary Uduma Sent from my BlackBerry wireless device from MTN -----Original Message----- From: Milton L Mueller <mueller@syr.edu> Date: Sun, 30 Nov 2014 03:18:13 To: Mary Uduma<mnuduma@yahoo.com>; Greg Shatan<gregshatanipc@gmail.com>; Avri Doria<avri@acm.org> Cc: cwg-stewardship@icann.org<cwg-stewardship@icann.org> Subject: RE: [CWG-Stewardship] Concern with Contract Co. Hi, Mary. No, if you believe that the Contract Co. is “another ICANN” it is a misperception. The idea for a Contract Co. was not mine, but the people who came up with it told me that the whole point of creating Contract Co. was to avoid creating something like ICANN that could grow and possibly spin out of control. And by separating PRT from Contract Co., we can also ensure that the PRT does not become a monster. Indeed, I think your idea of a PRT drawn from the ICANN community holding the contracting or MoU power over ICANN is far more dangerous than the current model. The PRT is temporary and multistakeholder and the contract Co. does what the PRT tells it to do at a particular time, that is my understanding. I think it seems like a good way to avoid some of the potential problems associated with replacing the NTIA. Others can speak up if they think I got it wrong. How this works legally? I will let the lawyers explain. ☺ I don’t know. I will say that it makes no sense to oppose the current model because you don’t want to create another corporation in the U.S. or because it is creating “another ICANN.” From: Mary Uduma [mailto:mnuduma@yahoo.com] Sent: Saturday, November 29, 2014 6:14 PM To: Milton L Mueller; Greg Shatan; Avri Doria Cc: cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Concern with Contract Co. Thank you Milton for responding to my comments. See my further comments below On Saturday, November 29, 2014 7:09 PM, Milton L Mueller <mueller@syr.edu<mailto:mueller@syr.edu>> wrote: Mary, Appreciate your comments but I cannot make sense of some of your arguments. Specifically, Contract Co: the jurisdictional questions as had been raised in this thread makes it less attractive as the way to go. MM: I’m sorry, but this doesn’t make any sense to me. There is no avoidance of jurisdictional issues. If there is no Contract Co. and ICANN controls the whole process directly, which is want Olivier and Alan want, then the jurisdiction is the United States. Decisions _must_ be made about jurisdiction, and the creation of a Contract Co. actually gives us more flexibility about this than the status quo. Let me also remind you that with the U.S. Congress looking over NTIA and a lame-duck Presidency, altering the jurisdiction of ICANN itself is simply not feasible at this juncture. Mary: Exactly my point, we should not create another corporation in the US rather deal with the existing ones and have a truly multi-stakeholder body to replace the NTIA stewardship position. I do not agree with you that the Internet Community needs a parallel ICANN for the IANA functions. I believe that changes should be minimal since it is working well. Question: Is this a multi-stakeholder entity? MM: The answer is simple. Yes. Contract Co. gets its instructions directly from PRT, which is multistakeholder. Mary: It does not still make it a truly Multi-stakeholder entity. PRT I can understand, perhaps, it might be helpful for you to explain further how Contract Co will function without a Board, Directors or Staff. who will answer to the licensing/registering authority? Are there no minimal requirements for incorporating a Co? What of the Bylaws for Registration? . General acceptability by the internet community may be difficult to sell considering the heightened awareness in most governments ( ie ccTLDs) regarding the IANA relationship and the position of NTIA in representing governments in the functions. MM: I think you are fundamentally misunderstanding the proposal before us. Contract Co is just a shell that does what the PRT tells it to do. If you are looking at it as some kind of Mary: Would promoters of the corporation come from the mutli-stakholders (acting on equal footing) of the internet community? I believe a less legal formal entity operating a bottom up process would not only meet the NTIA requirements but also give the internet community the opportunity to be part of the MoU agreement with IANA functions Operator. MM: I don’t understand this. PRT is representative of the Internet community. What is the difference between an MoU and a contract, except that an MoU is legally weaker and less separable? Mary: PRT is not Contract Co. I believe PRT can serve as a replacement of NTIA with a legally weaker Agreement in order to promote the true Multi-stakeholder entity. Who is the ultimate supervisor (Regulator) of this entity? - US government? MM: Again I do not understand where you are coming from and think that you may be fundamentally misunderstanding the proposal. The whole point of this proposal is to get the unilateral authority of the US government out of the system completely. Mary: I am sorry if I do not understand the proposal, but it seems to me that we are creating another ICANN in the name of Contract Co. There are some unanswered questions regarding the Contract Co that need further clarifications. An MoU between the Multistakeholder entity and the IANA operator would serve our purpose of getting the unilateral authority of the US government out and the authority of the internet community in. My views. Mary Uduma

Hi, On 30-Nov-14 04:18, Milton L Mueller wrote:

The PRT is temporary and multistakeholder and the contract Co. does what the PRT tells it to do at a particular time, that is my understanding. I think it seems like a good way to avoid some of the potential problems associated with replacing the NTIA. Others can speak up if they think I got it wrong. How this works legally? I will let the lawyers explain.

I agree, and that is the point I was making in my Trust-like structure. In my view this was a small legal entity empowered with making, breaking and administering a contract with the IANA function contractor at the direction of the PRT. It is what enables the PRT to be intermittent, it gives its directions to the Administrator employed by the Contract Co. and then goes to sleep until the next time it is needed to either deal with an emergency, e.g. an escalated emergency issue from the CSC, or for its appointed time for a [yeary] review of IANA performance, or its [N yearly] RFP and (re) assignment of the contract for the IANA function. As I indicated, if we decide that a contnuing clerical Root Zone Management Process Administrator is needed (i think that may be a good idea) it can perform this as well, as it is a rule driven task and requires no policy. I envision it as somewhat similar to the function defined in IETF BCP 101 <http://tools.ietf.org/html/bcp101> (which may provide an example of existing langauge for the lawyers/diplomats among us) to the IETF Adminsitrative Director (IAD) who responds to the directions of the IETF Administrative Oversight Committee (IAOC), which is analoguous to the PRT. Though the Contract Co, would not have as many powers as the IAD does as the IANA administrative function is not as broad as the administrative function of the IETF. From BCP 101

The IAD is responsible for working with the IAOC and others to understand the administrative requirements of the IETF, and for managing the IASA to meet those needs. This includes determining the structure of the IASA effort, establishing an operating budget, negotiating contracts with service providers, managing the business relationship with those providers, and establishing mechanisms to track their performance. The IAD may also manage other contractors or ISOC employees (such as support staff) as necessary, when such contractors or employees are engaged in IASA-related work.

In this replace: IETF with IANA contract IASA with the nameless "4 new entities to replace the current NTIA arrangements." IAD with Contract Co. IAOC with PRT ISOC with IANA Contractor (in the initial case, ICANN) Service providers may include things like the company hired to do audits &c or arrange the meeting of the PRT and CSC. Note, this is an analogy, I am not suggesting a word for word cut and paste, meant to illustrate the scope and structure I had in mind. One major difference is that in the IASA, the contracts are entered into by ISOC, whereas in the IANA transition solution they would be entered into by Contract Co, a legal entity in its own right that serves the interests of the Internet community, and holds the contract with IANA in 'trust', i.e. "for the benefit of," for that community. avri

Hello all, without looking at what is happening in the other silos we risk ending up with the ICG needing to do the job of harmonising/reconciliating the proposals. That is much more than just editorial changes and might involve amendments to the proposal itself. Is this CWG happy with this? Kind regards, Olivier On 29/11/2014 04:13, Avri Doria wrote:

On 28-Nov-14 19:36, Milton L Mueller wrote:

...

Is the option of having separate complementary contracts by the different users of the IANA functions off the table?

MM: By “different users of the IANA functions” do you mean the names, protocols and numbers users? If so I would admonish you again to stick to the knitting of this group, which is focused on names. We are not holistically redesigning the IANA arrangements we are focused on the names part exclusively.

In fact the ICG has done its best to make sure we don't have complementary solutions as the first decision they made on how the process and hence solution should be designed.

It is a coordinators' decision that seems to have been made that most all have just accepted.

avri

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