Strickling Remarks from 4 December re IANA Transition and Accountability
All: I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability: I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression. Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model. The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model. In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation. A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.” Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today. This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues. When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet. Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands. We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.” The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years. ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place. The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place. I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community. Getting the transition right will be a major project for NTIA in 2015. The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str... An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...> Greg *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/>*
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
All:
I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability:
I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression.
Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model.
The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model.
In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation.
A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.”
Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today.
This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues.
When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.
Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands.
We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.”
The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years.
ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place.
The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place.
I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community.
Getting the transition right will be a major project for NTIA in 2015. The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str...
An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...>
Greg
*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
Seun: I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so. The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope. I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need. In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along. Greg *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 Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
All:
I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability:
I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression.
Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model.
The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model.
In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation.
A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.”
Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today.
This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues.
When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.
Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands.
We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.”
The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years.
ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place.
The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place.
I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community.
Getting the transition right will be a major project for NTIA in 2015. The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str...
An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...>
Greg
*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
Hi Greg, I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun:
I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so.
The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope.
I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need.
In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along.
Greg
*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 Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
All:
I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability:
I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression.
Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model.
The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model.
In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation.
A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.”
Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today.
This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues.
When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.
Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands.
We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.”
The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years.
ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place.
The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place.
I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community.
Getting the transition right will be a major project for NTIA in 2015. The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str...
An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...>
Greg
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Seun, Thank you for clarifying your position on the timeline. I agree that we must press forward on our current timeline, even though that requires more dedication in less time than in a typical ICANN Working Group. The key point I am making is that the "IANA specific aspect of the accountability" is within the scope of our CWG, and has been since the beginning of our work. As it says in our Charter: "Accountability for the administration of the IANA functions (i.e.,implementation and operational accountability), however, is properly within the scope of this working group." Conversely, the Charter of CCWG-Accountability says "Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship." Thus, it incorrect to conclude from the short-hand terms "IANA transition" track and "accountability" track that the scope of our CWG excludes accountability and leaves it all to the Accountability CCWG. In fact, it's up to us to identify the *IANA-specific* aspects of accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started. One of the key determinations, which I'm confident is broadly supported in this group, is that it must be possible for the multistakeholder community to take away from ICANN the right to perform the IANA Functions. In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current *general* accountability issues, not because of them. To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- *and will continue to lack *-- appropriate *general* accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend *IANA-specific* accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done. Greg *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 Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun:
I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so.
The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope.
I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need.
In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along.
Greg
*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 Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
All:
I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability:
I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression.
Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model.
The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model.
In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation.
A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.”
Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today.
This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues.
When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.
Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands.
We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.”
The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years.
ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place.
The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place.
I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community.
Getting the transition right will be a major project for NTIA in 2015. The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str...
An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...>
Greg
*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>*
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Hello Greg, Thanks for clarifying your view about accountability, i guess i have a few more clarification to seek...kindly find inset On Sun, Dec 7, 2014 at 7:55 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Seun,
<snip>
In fact, it's up to us to identify the *IANA-specific* aspects of accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started.
If i may ask, if this group is able to put in place mechanisms that ensure the function operator is indeed accountable...why/what then is the need for the MRT and CSC?
In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current *general* accountability issues, not because of them.
Negative...i don't agree that is the best approach and again i don't know how you already determine the proposal is efficient especially when we don't even have the details yet. There are definitely other options that allows moving of IANA from ICANN (if absolutely required) one of which does not even require any contracting/MOU/agreement (which can be implemented by the technical community)
To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- *and will continue to lack *-- appropriate *general* accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend *IANA-specific* accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done.
Greg, you mentioned earlier that the ability to move IANA is required (although i don't necessarily agree but it doesn't hurt to have it) so if there are adequate mechanism within ICANN wouldn't all that will be required is for the mechanism to trigger movement of IANA from ICANN? Why then do we require all the MRT/CSC structure? I also don't agree that NTIA said we should replicate contracting processes (you may direct me to what part of NTIA announcement that implied such) Thanks Regards!
Greg
*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 Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun:
I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so.
The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope.
I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need.
In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along.
Greg
*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 Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
All:
I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability:
I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression.
Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model.
The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model.
In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation.
A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.”
Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today.
This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues.
When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.
Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands.
We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.”
The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years.
ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place.
The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place.
I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community.
Getting the transition right will be a major project for NTIA in 2015.
The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str...
An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...>
Greg
*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
-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
My responses are inline below. *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 Sun, Dec 7, 2014 at 4:28 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello Greg,
Thanks for clarifying your view about accountability, i guess i have a few more clarification to seek...kindly find inset
On Sun, Dec 7, 2014 at 7:55 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Seun,
<snip>
In fact, it's up to us to identify the *IANA-specific* aspects of accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started.
If i may ask, if this group is able to put in place mechanisms that ensure the function operator is indeed accountable...why/what then is the need for the MRT and CSC?
The MRT and CSC are integral parts of our accountability mechanisms, along with the contract (and the ability to terminate it) and the independent Appeals Panel. What do you think our accountability mechanisms are?
In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current *general* accountability issues, not because of them.
Negative...i don't agree that is the best approach and again i don't know how you already determine the proposal is efficient especially when we don't even have the details yet. There are definitely other options that allows moving of IANA from ICANN (if absolutely required) one of which does not even require any contracting/MOU/agreement (which can be implemented by the technical community)
We don't have all the details, but we have 10 pages of detail, enough to
make a preliminary judgment. These other options -- what detail is there for these options? What framework is there for these options? Until there is at least a "strawman" level of detail, these other "options" aren't options at all -- they are just empty catchphrases.
To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- *and will continue to lack *-- appropriate *general* accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend *IANA-specific* accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done.
Greg, you mentioned earlier that the ability to move IANA is required (although i don't necessarily agree but it doesn't hurt to have it) so if there are adequate mechanism within ICANN wouldn't all that will be required is for the mechanism to trigger movement of IANA from ICANN? Why then do we require all the MRT/CSC structure? I also don't agree that NTIA said we should replicate contracting processes (you may direct me to what part of NTIA announcement that implied such) .
There is broad support for separability in the CWG. It's in our Principles (letter h) and it's in our Draft Proposal. You are entitled to disagree, but unless you can convince the CWG to change the Principles and the Proposal, any option we recommend must include separability., You say "if there are adequate mechanisms within ICANN...." What are these "adequate mechanisms"? Where would they come from? Remember, it's up to our CWG to come up with mechanisms relating to IANA accountability. Your "mechanism" is a complete mystery. If you want this group to consider an "internal to ICANN" mechanism that would move the right to perform the IANA Functions out of ICANN (and meet all the other requirements in this transition), you'll need to propose one. Finally, I never said that the NTIA said we should replicate contracting processes. What makes you say that? However, unless we have another way to accomplish our objectives, the contract remains the most practical option. Greg
Thanks
Regards!
Greg
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
*666 Third Avenue **ï** New York, NY 10017-5621*
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On Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun:
I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so.
The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope.
I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need.
In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along.
Greg
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
*666 Third Avenue **ï** New York, NY 10017-5621*
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*www.lawabel.com <http://www.lawabel.com/>*
On Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
All:
I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability:
I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression.
Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model.
The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model.
In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation.
A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.”
Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today.
This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues.
When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.
Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands.
We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.”
The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years.
ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place.
The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place.
I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community.
Getting the transition right will be a major project for NTIA in 2015.
The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str...
An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...>
Greg
*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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_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
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*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
On Mon, Dec 8, 2014 at 6:18 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
My responses are inline below.
In fact, it's up to us to identify the *IANA-specific* aspects of
accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started.
If i may ask, if this group is able to put in place mechanisms that ensure the function operator is indeed accountable...why/what then is the need for the MRT and CSC?
The MRT and CSC are integral parts of our accountability mechanisms, along with the contract (and the ability to terminate it) and the independent Appeals Panel. What do you think our accountability mechanisms are?
Greg i think you did not get my point. My point is that the major accountability requirement that is IANA specific is that which is related to ensuring implementation based on existing policies. So if this group (or the cwg on accountability) is able to fashion out an internal mechanism that guarantees that aspect. Why will we still need MRT?. I may not have any issue if MRT's role does not include RFP and if the Contract Co is just signing of an MOU that is not term based, because at that point, the MRT will just be something similar to the cwg and will become very much less attractive (except that its waste of resources). This also will not in anyway reduce the possibility of moving IANA if need be. You are perhaps quite experienced in the gTLD space than i am, and realistically speaking i think the gTLD are the ones who should seek a permanent solution that makes the role reside within ICANN because everything about the gTLD currently exist within ICANN and it will not make any economic sense to move it out. So i find it strange that even if there is adequate accountability in place within ICANN, you will still insist on going the contracting route.
In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current *general* accountability issues, not because of them.
Negative...i don't agree that is the best approach and again i don't know how you already determine the proposal is efficient especially when we don't even have the details yet. There are definitely other options that allows moving of IANA from ICANN (if absolutely required) one of which does not even require any contracting/MOU/agreement (which can be implemented by the technical community)
We don't have all the details, but we have 10 pages of detail, enough to make a preliminary judgment. These other options -- what detail is there for these options? What framework is there for these options? Until there is at least a "strawman" level of detail, these other "options" aren't options at all -- they are just empty catchphrases.
Greg, please do not over-estimate multistakeholder settings especially when it has not been put to practice (as it is in this particular case). That 10page details has not touched critical aspect of MRT which is mainly its formation and charter plus the connection between MRT and contract co (it is not enough to call this a self company....the details is what is important)
To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- *and will continue to lack *-- appropriate *general* accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend *IANA-specific* accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done.
Greg, you mentioned earlier that the ability to move IANA is required (although i don't necessarily agree but it doesn't hurt to have it) so if there are adequate mechanism within ICANN wouldn't all that will be required is for the mechanism to trigger movement of IANA from ICANN? Why then do we require all the MRT/CSC structure? I also don't agree that NTIA said we should replicate contracting processes (you may direct me to what part of NTIA announcement that implied such) .
There is broad support for separability in the CWG. It's in our Principles (letter h) and it's in our Draft Proposal. You are entitled to disagree, but unless you can convince the CWG to change the Principles and the Proposal, any option we recommend must include separability.,
Well the principles is still in draft state (unless you mean it has just been finalised), in anycase, i have no problem with maintaining the current separability and this is something that can still be maintained internally by adding a few lines in the by-law
You say "if there are adequate mechanisms within ICANN...." What are these "adequate mechanisms"? Where would they come from? Remember, it's up to our CWG to come up with mechanisms relating to IANA accountability.
.....and this is the issue, we treat IANA accountability as if its rocket science, i think it may have been a mistake to have separated the CWG as its making it all look like the accountability this group is looking for is different from what the CWG-accountability is looking for.
Your "mechanism" is a complete mystery. If you want this group to consider an "internal to ICANN" mechanism that would move the right to perform the IANA Functions out of ICANN (and meet all the other requirements in this transition), you'll need to propose one.
The NTIA asks us to develop a proposal that transitions its stewardship to multi-stakeholder. It didn't say that the proposal has to be able to take the right to perform IANA function out of ICANN. The way i interpreted it is that ICANN currently has a growing multi-stakeholder environment and this is the opportunity to transition the stewardship to that community so if this require updating ICANN-by law...so be it. It is when we propose such and it gets rejected by ICANN board that we can justify that ICANN is not yet mature enough and a contracting route will suffice until there is significant indications of the organisation's maturity
Finally, I never said that the NTIA said we should replicate contracting processes. What makes you say that?
Well you have just implied that in your statement below
However, unless we have another way to accomplish our objectives, the contract remains the most practical option.
I have "paraphrased" what i believe to be our objective above. Regards
Greg
Thanks
Regards!
Greg
*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 Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun:
I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so.
The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope.
I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need.
In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along.
Greg
*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 Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
> All: > > I thought that Larry Strickling's remarks at a seminar yesterday > would be of interest to the group. Here is the portion of his speech that > appears germane to our work and that of the CWG-Accountability: > > I will finish up by addressing the challenges and opportunities > facing us in 2015 with respect to Internet policy. Our core mission at > NTIA is to ensure that the Internet remains an engine for economic growth, > innovation and free expression. > > Internationally, the United States has been a vocal advocate of the > bottom-up, consensus-based approach to Internet governance known as the > multistakeholder model. > > The multistakeholder model has enabled the Internet to develop into > an engine for innovation, free speech and economic growth. Under this > model, all stakeholders, whether they be from industry, civil society, or > government, come together in an inclusive, transparent, accountable forum > to make decisions and solve problems. As the Internet agency, NTIA’s job > is to strengthen and promote that model. > > In 2014, we have seen a growing acceptance of the multistakeholder > model around the world, but particularly in developing countries. Earlier > this year, Brazil hosted the successful NetMundial conference, which > brought together a wide range of stakeholders including technical experts, > civil society groups, industry representatives and government officials, > all on an equal footing with each other. At this meeting not only did > participants agree that Internet governance should be built on democratic > multistakeholder processes,” the entire meeting was a demonstration of the > open, participative, and consensus-driven governance that has allowed the > Internet to develop as an unparalleled engine of economic growth and > innovation. > > A month later, a High-Level Panel, headed by the president of > Estonia, Toomas Ilves released a report once again affirming the power of > multistakeholder policy development. The panel said it “recognizes, fully > supports, and adopts the Internet governance principles produced in the > NetMundial Statement.” > > Most recently, at the International Telecommunication Union’s 2014 > Plenipotentiary conference in Busan, Korea, last month, we saw the fruits > of all our work to preserve multistakeholder Internet governance. The > United States achieved all of its objectives in Busan, including keeping > the ITU’s work focused on its current mandate and not expanding its role > into Internet and cybersecurity issues. The U.S. delegation, led by > Ambassador Danny Sepulveda, successfully built consensus across nations to > protect the robust, innovative, multi-stakeholder Internet we enjoy today. > > This validation of the multistakeholder model comes at a critical > time. Last March, NTIA announced its intention to complete the > privatization of the Internet Domain Name System (DNS), currently managed > by the Internet Corporation for Assigned Names and Numbers (ICANN). This > process began in 1998, when ICANN took over important technical functions > related to the domain name system, known as the IANA functions, under a > contract with NTIA. In our March announcement, NTIA asked ICANN to convene > a multistakeholder process to develop a proposal to transition the U.S. > stewardship role over the IANA functions to the international community. We > did this to ensure that the multistakeholder model for DNS coordination > continues. > > When we announced this transition, we outlined some specific > conditions that must be addressed before this transition takes place. > First, the proposal must support and enhance the multistakeholder model of > Internet governance, in that it should be developed by the multistakeholder > community and have broad community support. More specifically, we will not > accept a transition proposal that replaces the NTIA role with a > government-led or intergovernmental organization solution. Second, the > proposal must maintain the security, stability, and resiliency of the > domain name system. Third, it must meet the needs and expectations of the > global customers and partners of the IANA services. And finally, it must > maintain the openness of the Internet. > > Now that we are eight months past our IANA announcement, it is > important to take stock of where this transition stands. > > We are pleased that the community has responded enthusiastically to > our call to develop a transition plan that will ensure the stability, > security and openness of the Internet. Acting as a facilitator, ICANN > announced this summer the formation of a group representing more than a > dozen Internet stakeholder communities that will help develop a transition > proposal. As set forth in its charter, the IANA Stewardship Transition > Coordination Group is “conduct[ing] itself transparently, consult[ing] with > a broad range of stakeholders, and ensur[ing] that its proposals support > the security and stability of the IANA functions.” > > The community is in the process of developing proposals for the > specific IANA functions. Earlier this week, a working group focused on > domain names released a 100-page proposal for community review and > comment. We expect proposals for other of the functions to surface over > the next month or so. The community hopes to submit its transition > proposal to NTIA by the end of next July, which would allow us to review > the proposal before the current contract expires at the end of September > 2015. I want to emphasize that we did not set a deadline for this > transition. If for some reason the community needs more time, we have the > option to extend the current contract for up to four years. > > ICANN has also launched a process to examine how to ensure it > remains accountable to the global Internet community. Specifically, this > process will examine how ICANN can strengthen its accountability mechanisms > to address the absence of its historical contractual relationship with > NTIA. NTIA believes that this accountability process needs to include the > stress testing of solutions to safeguard against future contingencies such > as attempts to influence or takeover ICANN functions that are not currently > possible with the IANA functions contract in place. > > The two work streams on the IANA transition and enhanced > accountability are directly linked and NTIA has repeatedly said that both > issues must be addressed before any transition takes place. > > I am confident that engaging the global Internet community to work > out these important issues will strengthen the multistakeholder process and > will result in ICANN’s becoming even more directly accountable to the > customers of the IANA functions and to the broader Internet community. > > Getting the transition right will be a major project for NTIA in > 2015. > The full remarks are at: > http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str... > > An article about these remarks by Kieren McCarty in the Register is > at: > http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... > <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...> > > Greg > > > *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 > >
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*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
My replies are inline. Greg *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 Mon, Dec 8, 2014 at 5:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On Mon, Dec 8, 2014 at 6:18 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
My responses are inline below.
In fact, it's up to us to identify the *IANA-specific* aspects of
accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started.
If i may ask, if this group is able to put in place mechanisms that ensure the function operator is indeed accountable...why/what then is the need for the MRT and CSC?
The MRT and CSC are integral parts of our accountability mechanisms, along with the contract (and the ability to terminate it) and the independent Appeals Panel. What do you think our accountability mechanisms are?
Greg i think you did not get my point. My point is that the major accountability requirement that is IANA specific is that which is related to ensuring implementation based on existing policies. So if this group (or the cwg on accountability) is able to fashion out an internal mechanism that guarantees that aspect. Why will we still need MRT?.
This group has always been "able," *as a matter of scope*, to fashion an internal-to-ICANN accountability mechanism. Similarly, NASA, as a matter of scope, has always been "able" to fly a rocket to Mars fueled by a jar of peanut butter. So, what is stopping us and NASA from accomplishing these objectives? At the very least, the lack of any sort of plan or proposal showing *how* one would accomplish this. So it is not a question of scope, it's a question of putting together a plan. Is this group "able" *as a practical matter* to put together a plan for an internal-to-ICANN accountability mechanism that meets the requirements and concerns of the NTIA and various stakeholders? So far, the answer seems to be "no." I'm open minded -- if someone puts forth a plan with a reasonable level of detail (e.g., strawman or draft proposal level of detail) and everyone probes it for flaws and asks for further details, which then get filled in, and if that plan, after making it through the gantlet of this group, looks viable, that would be a good thing. (And, of course, that plan might not include an MRT, or it would include a different sort of multistakeholder body.) However, it hasn't happened and I don't see any real movement toward it, and the time for such action is growing short. Unless there is some realistic movement forward on an "internal-to-ICANN" plan, the continued reference to the "internal-to-ICANN" concept has no shape and thus no value. Continuing to advocate for "internal-to-ICANN" is very much like a NASA scientist wandering the halls of NASA with a jar of peanut butter, shouting "To Mars!!" No matter how much that scientist critiques other plans for going to Mars, his "Peanut Butter Plan" will never be credible without more from him.
I may not have any issue if MRT's role does not include RFP and if the Contract Co is just signing of an MOU that is not term based, because at that point, the MRT will just be something similar to the cwg and will become very much less attractive (except that its waste of resources).
It seems you have an essential issue with separability -- you don't want a term and you don't want an RFP. So, essentially you want to give ICANN the right in perpetuity to be the IANA Functions Operator, subject perhaps to some completely undefined method for some completely undefined group to remove that right due to a completely undefined failure to meet completely undefined criteria. Well, I can't give the "undefined" any weight whatsoever. I'm sorry you think that multistakeholder oversight of the IANA Functions is a "waste of resources." The NTIA and most of the people on this list (myself included) seem to think it is very valuable -- indeed, for the NTIA it is the essence of the transition. How do you propose to transfer the NTIA's functions to the global multistakeholder community without any sort of multistakeholder group?
This also will not in anyway reduce the possibility of moving IANA if need be.
I don't see how you can say this. You want to eliminate the only possibilities this CWG has defined to move IANA if need be. You propose no method or group or criteria by which moving IANA if need be could be achieved. Until you provide some alternative, you have reduced -- effectively to zero -- the possibility of moving IANA.
You are perhaps quite experienced in the gTLD space than i am, and realistically speaking i think the gTLD are the ones who should seek a permanent solution that makes the role reside within ICANN because everything about the gTLD currently exist within ICANN and it will not make any economic sense to move it out. So i find it strange that even if there is adequate accountability in place within ICANN, you will still insist on going the contracting route.
Adequate accountability within ICANN is a necessity before we move forward with any transition. However adequate accountability within ICANN is not sufficient -- we need adequate accountability within ICANN *directly related to performance of (or failure to properly perform) the IANA Functions*. This type of accountability is within the scope of this CWG (and not the Accountability CCWG), and so far, we have not seen any plan or proposal for such accountability that is adequate and responds to the concerns regarding separability, etc. I am not insisting on anything with regard to the contracting route. To the contrary, I remain open-minded. If we had an "internal to ICANN" plan that looked like it worked for all our purposes and didn't involve a contract, I would love to look at it and subject it to the same scrutiny that the current proposal has been subjected to. After that, who knows what would happen?
In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current *general* accountability issues, not because of them.
Negative...i don't agree that is the best approach and again i don't know how you already determine the proposal is efficient especially when we don't even have the details yet. There are definitely other options that allows moving of IANA from ICANN (if absolutely required) one of which does not even require any contracting/MOU/agreement (which can be implemented by the technical community)
We don't have all the details, but we have 10 pages of detail, enough to make a preliminary judgment. These other options -- what detail is there for these options? What framework is there for these options? Until there is at least a "strawman" level of detail, these other "options" aren't options at all -- they are just empty catchphrases.
Greg, please do not over-estimate multistakeholder settings especially when it has not been put to practice (as it is in this particular case). That 10page details has not touched critical aspect of MRT which is mainly its formation and charter plus the connection between MRT and contract co (it is not enough to call this a self company....the details is what is important)
Perhaps I have greater faith in the multistakeholder model than you do. Of course, we will not know how it works in practice until it is in practice -- but that's true of any plan. We are developing details and we will be subjecting the model to stress tests, so we should know as much anyone with a plan knows about how that plan will work in practice. Given that our goal is to transition NTIA's roles to the global multistakeholder community, we have to have some level of faith in the multistakeholder model. Otherwise, we should just tell the NTIA that transitioning their role to the global multistakeholder community can't be done. I agree that we need to flesh out how the MRT will be formed and what its charter might look like -- what are your suggestions for these aspects that would give you greater comfort? The connection between MRT and Contract Co. does need to be fleshed out as well -- I envision this as being written into Contract Co.'s bylaws. And by the way, I never called Contact Co. a "shelf company" -- it will be lightweight and limited but by definition, it can't be a shelf company. A shelf company (at least as this term is used in the U.S., refers to an inactive (and never activated) corporation -- it has no assets or liabilities, it has entered into no contracts or other obligations of any kind, it typically has a single "incorporator" rather than a full slate of officers and directors, and it has generic short-form documents rather than any kind of specially-drafted articles of incorporation or bylaws. Contract Co. should be as close as possible to a "shelf corporation".while still being able to perform its duties and meet the needs of the framework (which actually requires a fairly specifically-developed set of by-laws to keep it small and limited). Without diminishing the importance of details -- the details are only important if the general framework looks promising and appropriate. I think we have that, and we have a good understanding of the principles that the details must meet to be acceptable to this group and the larger multistakeholder community. Now it's just a matter of following those principles and filling in the details -- not a small task, but not one to be overestimated either.
To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- *and will continue to lack *-- appropriate *general* accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend *IANA-specific* accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done.
Greg, you mentioned earlier that the ability to move IANA is required (although i don't necessarily agree but it doesn't hurt to have it) so if there are adequate mechanism within ICANN wouldn't all that will be required is for the mechanism to trigger movement of IANA from ICANN? Why then do we require all the MRT/CSC structure? I also don't agree that NTIA said we should replicate contracting processes (you may direct me to what part of NTIA announcement that implied such) .
There is broad support for separability in the CWG. It's in our Principles (letter h) and it's in our Draft Proposal. You are entitled to disagree, but unless you can convince the CWG to change the Principles and the Proposal, any option we recommend must include separability.,
Well the principles is still in draft state (unless you mean it has just been finalised), in anycase, i have no problem with maintaining the current separability and this is something that can still be maintained internally by adding a few lines in the by-law
The Principles may be in draft but they have broad support, and they are heading toward finality. So it is certainly most appropriate to consider them heavily in examining any proposal. Right now, the current separability is entirely a creation of the IANA Contract -- I"m glad you have no problem maintaining the type of separability now embodied in the contract. However, you go on to say that this separability "can still be maintained internally by adding a few lines in the by-law." I find this assumption completely unsupported and thus completely lacking in credibility and value. Why do you think this is true? What would you put in the by-laws (by-laws aren't magic, they require words that work)? How would this work? What and who would trigger the separation? What would be the method for actually separating and finding a new Operator? Without answers to these questions, you are just running through the halls of the CWG with a jar of peanut butter, shouting "To Mars!" I'm not buying it -- not because I believe it's impossible -- but because I've been shown nothing on a functional level that makes me believe it is possible.
You say "if there are adequate mechanisms within ICANN...." What are these "adequate mechanisms"? Where would they come from? Remember, it's up to our CWG to come up with mechanisms relating to IANA accountability.
.....and this is the issue, we treat IANA accountability as if its rocket science, i think it may have been a mistake to have separated the CWG as its making it all look like the accountability this group is looking for is different from what the CWG-accountability is looking for.
It's not rocket science, and I don't believe we are treating it that way. It's just hard work. Whether having two CWGs is a mistake is beside the point. The accountability this group is looking for *IS* different from the accountability the CWG-Accountability is looking for. As I pointed out earlier in this thread: *The key point I am making is that the "IANA specific aspect of the accountability" is within the scope of our CWG, and has been since the beginning of our work. As it says in our Charter: "Accountability for the administration of the IANA functions (i.e.,implementation and operational accountability), however, is properly within the scope of this working group." **Conversely, the Charter of CCWG-Accountability says "Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship."* The CWG-Accountability is looking at the much broader question of enhancing ICANN's accountability to its stakeholders in all of its policy-making, implementing, operations, etc. -- everything *but* the accountability we are looking for.
Your "mechanism" is a complete mystery. If you want this group to consider an "internal to ICANN" mechanism that would move the right to perform the IANA Functions out of ICANN (and meet all the other requirements in this transition), you'll need to propose one.
The NTIA asks us to develop a proposal that transitions its stewardship to multi-stakeholder. It didn't say that the proposal has to be able to take the right to perform IANA function out of ICANN.
I agree that the NTIA did not say that our proposal has to be able to take the right to perform the IANA functions out of ICANN. However, the NTIA also did not preclude a proposal that takes the right to perform the IANA Functions out of ICANN. There was broad support within the CWG for a proposal that included the possibility and ability to take the right to perform the IANA Functions out of ICANN, and therefore that is in our proposal.
The way i interpreted it is that ICANN currently has a growing multi-stakeholder environment and this is the opportunity to transition the stewardship to that community so if this require updating ICANN-by law...so be it.
First, the NTIA did not refer to the "ICANN multistakeholder community," it referred to the "global multistakeholder community." These are not the same things. Nonetheless, I don't believe that this necessarily precludes an "internal-to-ICANN" solution, but it does mean that any such solution would have to bring stakeholders not present in ICANN into the oversight and accountability process. As for updating the ICANN by-laws, this not a magic wand. Without some idea of what this means (and I've asked a few questions above so that I and others can get some idea), saying "update the ICANN by-laws" is no more valuable than that NASA scientist saying "peanut butter." Please note that I am not categorically precluding an "internal-to-ICANN" proposal. But right now, I don't see where that proposal is coming from, much less how it will satisfy even the most basic concerns of various stakeholders.
It is when we propose such and it gets rejected by ICANN board that we can justify that ICANN is not yet mature enough and a contracting route will suffice until there is significant indications of the organisation's maturity
First, we have to have a reasonably tangible and concrete "Internal-to-ICANN" proposal before the CWG, and that proposal has be further developed by and win the support of the CWG. We don't have even the first step of that , so your scenario above never happens. If it does happen, it's because the CWG decides that this "internal-to-ICANN" is the best proposal, not because we want to test the ICANN Board's "maturity", before putting forth the current draft proposal. I am confident we will put forth the proposal that gains the most support from the CWG and the stakeholders, regardless of whether the ICANN Board will like it. Right now, that seems likely to be a proposal growing out of the current draft proposal, since there is no other tangible proposal on the table. In any event, whether the ICANN Board would or even has the power to "reject" the proposal is open to question. As the ICG FAQ states: *15. How will ICANN Board handle the final proposal submitted by the ICG?* *The ICG expects that its proposal, having achieved consensus on the Coordination Group and within the Operational Communities, will be welcomed by the ICANN Board and dutifully transmitted to NTIA*
Finally, I never said that the NTIA said we should replicate contracting processes. What makes you say that?
Well you have just implied that in your statement below
No, I have not. I didn't even mention the NTIA. Please don't put words in my mouth.
However, unless we have another way to accomplish our objectives, the contract remains the most practical option.
I have "paraphrased" what i believe to be our objective above.
I'm not sure what you are referring to, or what your point is. Whatever
your paraphrase is, our objectives are already well stated in the NTIA's announcement, the ICG RFP and our charter, so hopefully your paraphrase is consistent with those base document. Regards, Greg
Regards
Greg
Thanks
Regards!
Greg
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
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On Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun:
I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so.
The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope.
I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need.
In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along.
Greg
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
*666 Third Avenue **ï** New York, NY 10017-5621*
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On Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
> Thanks for the share Greg, wouldn't this then give us the > opportunity to rethink the accountability measures we propose to put in > place in lieu of ICANN's accountability; Since ICANN accountability is a > requirement for transition then there may be no need for the current > overreaching transition structure we are proposing. > > Cheers! > > sent from Google nexus 4 > kindly excuse brevity and typos. > On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote: > >> All: >> >> I thought that Larry Strickling's remarks at a seminar yesterday >> would be of interest to the group. Here is the portion of his speech that >> appears germane to our work and that of the CWG-Accountability: >> >> I will finish up by addressing the challenges and opportunities >> facing us in 2015 with respect to Internet policy. Our core mission at >> NTIA is to ensure that the Internet remains an engine for economic growth, >> innovation and free expression. >> >> Internationally, the United States has been a vocal advocate of the >> bottom-up, consensus-based approach to Internet governance known as the >> multistakeholder model. >> >> The multistakeholder model has enabled the Internet to develop into >> an engine for innovation, free speech and economic growth. Under this >> model, all stakeholders, whether they be from industry, civil society, or >> government, come together in an inclusive, transparent, accountable forum >> to make decisions and solve problems. As the Internet agency, NTIA’s job >> is to strengthen and promote that model. >> >> In 2014, we have seen a growing acceptance of the multistakeholder >> model around the world, but particularly in developing countries. Earlier >> this year, Brazil hosted the successful NetMundial conference, which >> brought together a wide range of stakeholders including technical experts, >> civil society groups, industry representatives and government officials, >> all on an equal footing with each other. At this meeting not only did >> participants agree that Internet governance should be built on democratic >> multistakeholder processes,” the entire meeting was a demonstration of the >> open, participative, and consensus-driven governance that has allowed the >> Internet to develop as an unparalleled engine of economic growth and >> innovation. >> >> A month later, a High-Level Panel, headed by the president of >> Estonia, Toomas Ilves released a report once again affirming the power of >> multistakeholder policy development. The panel said it “recognizes, fully >> supports, and adopts the Internet governance principles produced in the >> NetMundial Statement.” >> >> Most recently, at the International Telecommunication Union’s 2014 >> Plenipotentiary conference in Busan, Korea, last month, we saw the fruits >> of all our work to preserve multistakeholder Internet governance. The >> United States achieved all of its objectives in Busan, including keeping >> the ITU’s work focused on its current mandate and not expanding its role >> into Internet and cybersecurity issues. The U.S. delegation, led by >> Ambassador Danny Sepulveda, successfully built consensus across nations to >> protect the robust, innovative, multi-stakeholder Internet we enjoy today. >> >> This validation of the multistakeholder model comes at a critical >> time. Last March, NTIA announced its intention to complete the >> privatization of the Internet Domain Name System (DNS), currently managed >> by the Internet Corporation for Assigned Names and Numbers (ICANN). This >> process began in 1998, when ICANN took over important technical functions >> related to the domain name system, known as the IANA functions, under a >> contract with NTIA. In our March announcement, NTIA asked ICANN to convene >> a multistakeholder process to develop a proposal to transition the U.S. >> stewardship role over the IANA functions to the international community. We >> did this to ensure that the multistakeholder model for DNS coordination >> continues. >> >> When we announced this transition, we outlined some specific >> conditions that must be addressed before this transition takes place. >> First, the proposal must support and enhance the multistakeholder model of >> Internet governance, in that it should be developed by the multistakeholder >> community and have broad community support. More specifically, we will not >> accept a transition proposal that replaces the NTIA role with a >> government-led or intergovernmental organization solution. Second, the >> proposal must maintain the security, stability, and resiliency of the >> domain name system. Third, it must meet the needs and expectations of the >> global customers and partners of the IANA services. And finally, it must >> maintain the openness of the Internet. >> >> Now that we are eight months past our IANA announcement, it is >> important to take stock of where this transition stands. >> >> We are pleased that the community has responded enthusiastically to >> our call to develop a transition plan that will ensure the stability, >> security and openness of the Internet. Acting as a facilitator, ICANN >> announced this summer the formation of a group representing more than a >> dozen Internet stakeholder communities that will help develop a transition >> proposal. As set forth in its charter, the IANA Stewardship Transition >> Coordination Group is “conduct[ing] itself transparently, consult[ing] with >> a broad range of stakeholders, and ensur[ing] that its proposals support >> the security and stability of the IANA functions.” >> >> The community is in the process of developing proposals for the >> specific IANA functions. Earlier this week, a working group focused on >> domain names released a 100-page proposal for community review and >> comment. We expect proposals for other of the functions to surface over >> the next month or so. The community hopes to submit its transition >> proposal to NTIA by the end of next July, which would allow us to review >> the proposal before the current contract expires at the end of September >> 2015. I want to emphasize that we did not set a deadline for this >> transition. If for some reason the community needs more time, we have the >> option to extend the current contract for up to four years. >> >> ICANN has also launched a process to examine how to ensure it >> remains accountable to the global Internet community. Specifically, this >> process will examine how ICANN can strengthen its accountability mechanisms >> to address the absence of its historical contractual relationship with >> NTIA. NTIA believes that this accountability process needs to include the >> stress testing of solutions to safeguard against future contingencies such >> as attempts to influence or takeover ICANN functions that are not currently >> possible with the IANA functions contract in place. >> >> The two work streams on the IANA transition and enhanced >> accountability are directly linked and NTIA has repeatedly said that both >> issues must be addressed before any transition takes place. >> >> I am confident that engaging the global Internet community to work >> out these important issues will strengthen the multistakeholder process and >> will result in ICANN’s becoming even more directly accountable to the >> customers of the IANA functions and to the broader Internet community. >> >> Getting the transition right will be a major project for NTIA in >> 2015. >> The full remarks are at: >> http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str... >> >> An article about these remarks by Kieren McCarty in the Register is >> at: >> http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... >> <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...> >> >> Greg >> >> >> *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 >> >>
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*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
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*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
Hi Greg, Although I personally have not made up my mind as yet if the contract co or an internal ICANN solution is preferable, I have posted a very rough idea for an internal solution in another thread that I have not seen your response to. I repeat it here as I am interested to here from you if you think it would be legally possible (apart from the fact that you probably do not support it for other reasons): “If we could arrange via the bylaws that the ICANN board explicitly has to follow orders from a MRT-like structure, we might not need a contract but have an (internal) MoU/SLA or whatever. If the ICANN board would at a certain moment in time still decide not to follow orders of the MRT, I would assume it may be sued by affected parties for violating its own bylaws. We further may dictate in the bylaws that ICANN has to give up the IANA function if decided by this MRT and of course seal it by dictating that these specific articles may only be changed with the explicit consent of the MRT.” I know it is (still) very rough and I directly agree that separating the IANA function will in a legal sense probably be a lot more difficult, I think it would be possible under my legal system at home. Appreciate your response. Best, Maarten From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Greg Shatan Sent: maandag 8 december 2014 19:49 To: Seun Ojedeji Cc: cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Strickling Remarks from 4 December re IANA Transition and Accountability My replies are inline. Greg Gregory S. Shatan • Abelman Frayne & Schwab 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<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Mon, Dec 8, 2014 at 5:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: On Mon, Dec 8, 2014 at 6:18 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: My responses are inline below. In fact, it's up to us to identify the IANA-specific aspects of accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started. If i may ask, if this group is able to put in place mechanisms that ensure the function operator is indeed accountable...why/what then is the need for the MRT and CSC? The MRT and CSC are integral parts of our accountability mechanisms, along with the contract (and the ability to terminate it) and the independent Appeals Panel. What do you think our accountability mechanisms are? Greg i think you did not get my point. My point is that the major accountability requirement that is IANA specific is that which is related to ensuring implementation based on existing policies. So if this group (or the cwg on accountability) is able to fashion out an internal mechanism that guarantees that aspect. Why will we still need MRT?. This group has always been "able," as a matter of scope, to fashion an internal-to-ICANN accountability mechanism. Similarly, NASA, as a matter of scope, has always been "able" to fly a rocket to Mars fueled by a jar of peanut butter. So, what is stopping us and NASA from accomplishing these objectives? At the very least, the lack of any sort of plan or proposal showing how one would accomplish this. So it is not a question of scope, it's a question of putting together a plan. Is this group "able" as a practical matter to put together a plan for an internal-to-ICANN accountability mechanism that meets the requirements and concerns of the NTIA and various stakeholders? So far, the answer seems to be "no." I'm open minded -- if someone puts forth a plan with a reasonable level of detail (e.g., strawman or draft proposal level of detail) and everyone probes it for flaws and asks for further details, which then get filled in, and if that plan, after making it through the gantlet of this group, looks viable, that would be a good thing. (And, of course, that plan might not include an MRT, or it would include a different sort of multistakeholder body.) However, it hasn't happened and I don't see any real movement toward it, and the time for such action is growing short. Unless there is some realistic movement forward on an "internal-to-ICANN" plan, the continued reference to the "internal-to-ICANN" concept has no shape and thus no value. Continuing to advocate for "internal-to-ICANN" is very much like a NASA scientist wandering the halls of NASA with a jar of peanut butter, shouting "To Mars!!" No matter how much that scientist critiques other plans for going to Mars, his "Peanut Butter Plan" will never be credible without more from him. I may not have any issue if MRT's role does not include RFP and if the Contract Co is just signing of an MOU that is not term based, because at that point, the MRT will just be something similar to the cwg and will become very much less attractive (except that its waste of resources). It seems you have an essential issue with separability -- you don't want a term and you don't want an RFP. So, essentially you want to give ICANN the right in perpetuity to be the IANA Functions Operator, subject perhaps to some completely undefined method for some completely undefined group to remove that right due to a completely undefined failure to meet completely undefined criteria. Well, I can't give the "undefined" any weight whatsoever. I'm sorry you think that multistakeholder oversight of the IANA Functions is a "waste of resources." The NTIA and most of the people on this list (myself included) seem to think it is very valuable -- indeed, for the NTIA it is the essence of the transition. How do you propose to transfer the NTIA's functions to the global multistakeholder community without any sort of multistakeholder group? This also will not in anyway reduce the possibility of moving IANA if need be. I don't see how you can say this. You want to eliminate the only possibilities this CWG has defined to move IANA if need be. You propose no method or group or criteria by which moving IANA if need be could be achieved. Until you provide some alternative, you have reduced -- effectively to zero -- the possibility of moving IANA. You are perhaps quite experienced in the gTLD space than i am, and realistically speaking i think the gTLD are the ones who should seek a permanent solution that makes the role reside within ICANN because everything about the gTLD currently exist within ICANN and it will not make any economic sense to move it out. So i find it strange that even if there is adequate accountability in place within ICANN, you will still insist on going the contracting route. Adequate accountability within ICANN is a necessity before we move forward with any transition. However adequate accountability within ICANN is not sufficient -- we need adequate accountability within ICANN directly related to performance of (or failure to properly perform) the IANA Functions. This type of accountability is within the scope of this CWG (and not the Accountability CCWG), and so far, we have not seen any plan or proposal for such accountability that is adequate and responds to the concerns regarding separability, etc. I am not insisting on anything with regard to the contracting route. To the contrary, I remain open-minded. If we had an "internal to ICANN" plan that looked like it worked for all our purposes and didn't involve a contract, I would love to look at it and subject it to the same scrutiny that the current proposal has been subjected to. After that, who knows what would happen? In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current general accountability issues, not because of them. Negative...i don't agree that is the best approach and again i don't know how you already determine the proposal is efficient especially when we don't even have the details yet. There are definitely other options that allows moving of IANA from ICANN (if absolutely required) one of which does not even require any contracting/MOU/agreement (which can be implemented by the technical community) We don't have all the details, but we have 10 pages of detail, enough to make a preliminary judgment. These other options -- what detail is there for these options? What framework is there for these options? Until there is at least a "strawman" level of detail, these other "options" aren't options at all -- they are just empty catchphrases. Greg, please do not over-estimate multistakeholder settings especially when it has not been put to practice (as it is in this particular case). That 10page details has not touched critical aspect of MRT which is mainly its formation and charter plus the connection between MRT and contract co (it is not enough to call this a self company....the details is what is important) Perhaps I have greater faith in the multistakeholder model than you do. Of course, we will not know how it works in practice until it is in practice -- but that's true of any plan. We are developing details and we will be subjecting the model to stress tests, so we should know as much anyone with a plan knows about how that plan will work in practice. Given that our goal is to transition NTIA's roles to the global multistakeholder community, we have to have some level of faith in the multistakeholder model. Otherwise, we should just tell the NTIA that transitioning their role to the global multistakeholder community can't be done. I agree that we need to flesh out how the MRT will be formed and what its charter might look like -- what are your suggestions for these aspects that would give you greater comfort? The connection between MRT and Contract Co. does need to be fleshed out as well -- I envision this as being written into Contract Co.'s bylaws. And by the way, I never called Contact Co. a "shelf company" -- it will be lightweight and limited but by definition, it can't be a shelf company. A shelf company (at least as this term is used in the U.S., refers to an inactive (and never activated) corporation -- it has no assets or liabilities, it has entered into no contracts or other obligations of any kind, it typically has a single "incorporator" rather than a full slate of officers and directors, and it has generic short-form documents rather than any kind of specially-drafted articles of incorporation or bylaws. Contract Co. should be as close as possible to a "shelf corporation".while still being able to perform its duties and meet the needs of the framework (which actually requires a fairly specifically-developed set of by-laws to keep it small and limited). Without diminishing the importance of details -- the details are only important if the general framework looks promising and appropriate. I think we have that, and we have a good understanding of the principles that the details must meet to be acceptable to this group and the larger multistakeholder community. Now it's just a matter of following those principles and filling in the details -- not a small task, but not one to be overestimated either. To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- and will continue to lack -- appropriate general accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend IANA-specific accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done. Greg, you mentioned earlier that the ability to move IANA is required (although i don't necessarily agree but it doesn't hurt to have it) so if there are adequate mechanism within ICANN wouldn't all that will be required is for the mechanism to trigger movement of IANA from ICANN? Why then do we require all the MRT/CSC structure? I also don't agree that NTIA said we should replicate contracting processes (you may direct me to what part of NTIA announcement that implied such) . There is broad support for separability in the CWG. It's in our Principles (letter h) and it's in our Draft Proposal. You are entitled to disagree, but unless you can convince the CWG to change the Principles and the Proposal, any option we recommend must include separability., Well the principles is still in draft state (unless you mean it has just been finalised), in anycase, i have no problem with maintaining the current separability and this is something that can still be maintained internally by adding a few lines in the by-law The Principles may be in draft but they have broad support, and they are heading toward finality. So it is certainly most appropriate to consider them heavily in examining any proposal. Right now, the current separability is entirely a creation of the IANA Contract -- I"m glad you have no problem maintaining the type of separability now embodied in the contract. However, you go on to say that this separability "can still be maintained internally by adding a few lines in the by-law." I find this assumption completely unsupported and thus completely lacking in credibility and value. Why do you think this is true? What would you put in the by-laws (by-laws aren't magic, they require words that work)? How would this work? What and who would trigger the separation? What would be the method for actually separating and finding a new Operator? Without answers to these questions, you are just running through the halls of the CWG with a jar of peanut butter, shouting "To Mars!" I'm not buying it -- not because I believe it's impossible -- but because I've been shown nothing on a functional level that makes me believe it is possible. You say "if there are adequate mechanisms within ICANN...." What are these "adequate mechanisms"? Where would they come from? Remember, it's up to our CWG to come up with mechanisms relating to IANA accountability. .....and this is the issue, we treat IANA accountability as if its rocket science, i think it may have been a mistake to have separated the CWG as its making it all look like the accountability this group is looking for is different from what the CWG-accountability is looking for. It's not rocket science, and I don't believe we are treating it that way. It's just hard work. Whether having two CWGs is a mistake is beside the point. The accountability this group is looking for IS different from the accountability the CWG-Accountability is looking for. As I pointed out earlier in this thread: The key point I am making is that the "IANA specific aspect of the accountability" is within the scope of our CWG, and has been since the beginning of our work. As it says in our Charter: "Accountability for the administration of the IANA functions (i.e.,implementation and operational accountability), however, is properly within the scope of this working group." Conversely, the Charter of CCWG-Accountability says "Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship." The CWG-Accountability is looking at the much broader question of enhancing ICANN's accountability to its stakeholders in all of its policy-making, implementing, operations, etc. -- everything but the accountability we are looking for. Your "mechanism" is a complete mystery. If you want this group to consider an "internal to ICANN" mechanism that would move the right to perform the IANA Functions out of ICANN (and meet all the other requirements in this transition), you'll need to propose one. The NTIA asks us to develop a proposal that transitions its stewardship to multi-stakeholder. It didn't say that the proposal has to be able to take the right to perform IANA function out of ICANN. I agree that the NTIA did not say that our proposal has to be able to take the right to perform the IANA functions out of ICANN. However, the NTIA also did not preclude a proposal that takes the right to perform the IANA Functions out of ICANN. There was broad support within the CWG for a proposal that included the possibility and ability to take the right to perform the IANA Functions out of ICANN, and therefore that is in our proposal. The way i interpreted it is that ICANN currently has a growing multi-stakeholder environment and this is the opportunity to transition the stewardship to that community so if this require updating ICANN-by law...so be it. First, the NTIA did not refer to the "ICANN multistakeholder community," it referred to the "global multistakeholder community." These are not the same things. Nonetheless, I don't believe that this necessarily precludes an "internal-to-ICANN" solution, but it does mean that any such solution would have to bring stakeholders not present in ICANN into the oversight and accountability process. As for updating the ICANN by-laws, this not a magic wand. Without some idea of what this means (and I've asked a few questions above so that I and others can get some idea), saying "update the ICANN by-laws" is no more valuable than that NASA scientist saying "peanut butter." Please note that I am not categorically precluding an "internal-to-ICANN" proposal. But right now, I don't see where that proposal is coming from, much less how it will satisfy even the most basic concerns of various stakeholders. It is when we propose such and it gets rejected by ICANN board that we can justify that ICANN is not yet mature enough and a contracting route will suffice until there is significant indications of the organisation's maturity First, we have to have a reasonably tangible and concrete "Internal-to-ICANN" proposal before the CWG, and that proposal has be further developed by and win the support of the CWG. We don't have even the first step of that , so your scenario above never happens. If it does happen, it's because the CWG decides that this "internal-to-ICANN" is the best proposal, not because we want to test the ICANN Board's "maturity", before putting forth the current draft proposal. I am confident we will put forth the proposal that gains the most support from the CWG and the stakeholders, regardless of whether the ICANN Board will like it. Right now, that seems likely to be a proposal growing out of the current draft proposal, since there is no other tangible proposal on the table. In any event, whether the ICANN Board would or even has the power to "reject" the proposal is open to question. As the ICG FAQ states: 15. How will ICANN Board handle the final proposal submitted by the ICG? The ICG expects that its proposal, having achieved consensus on the Coordination Group and within the Operational Communities, will be welcomed by the ICANN Board and dutifully transmitted to NTIA Finally, I never said that the NTIA said we should replicate contracting processes. What makes you say that? Well you have just implied that in your statement below No, I have not. I didn't even mention the NTIA. Please don't put words in my mouth. However, unless we have another way to accomplish our objectives, the contract remains the most practical option. I have "paraphrased" what i believe to be our objective above. I'm not sure what you are referring to, or what your point is. Whatever your paraphrase is, our objectives are already well stated in the NTIA's announcement, the ICG RFP and our charter, so hopefully your paraphrase is consistent with those base document. Regards, Greg Regards Greg Thanks Regards! Greg Gregory S. Shatan • Abelman Frayne & Schwab 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<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Greg, I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Seun: I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so. The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope. I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need. In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along. Greg Gregory S. Shatan • Abelman Frayne & Schwab 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<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: All: I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability: I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression. Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model. The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model. In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation. A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.” Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today. This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues. When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet. Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands. We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.” The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years. ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place. The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place. I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community. Getting the transition right will be a major project for NTIA in 2015. The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str... An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_accountability_no_iana/<http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_accountability_no_iana/> Greg Gregory S. Shatan • Abelman Frayne & Schwab 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<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view ! -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view !
Maarten: My answers are inline below. Greg On Mon, Dec 8, 2014 at 5:46 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Hi Greg,
Although I personally have not made up my mind as yet if the contract co or an internal ICANN solution is preferable, I have posted a very rough idea for an internal solution in another thread that I have not seen your response to. I repeat it here as I am interested to here from you if you think it would be legally possible (apart from the fact that you probably do not support it for other reasons):
“If we could arrange via the bylaws that the ICANN board explicitly has to follow orders from a MRT-like structure,
GS: This is a pretty big "if." Unlike Contract Co., which would be built from the ground up to be a corporation with very limited purpose and goals and limitations upon its directors and officer, and thus lends itself to this "following orders" model, ICANN is an existing organization with a large board and officer group and many activities. At best, this type of organization does not lend itself to such a model. At worst, it's not even possible. But let's assume, solely for the sake of argument, that the ICANN bylaws can be modified in this fashion. I am assuming that the MRT will be "internal-to-ICANN" like the current SOs and ACs (and in contrast to the ICG). Is that correct? If so, how do you involve the global multistakeholder community (beyond ICANN) as required by the NTIA?
we might not need a contract but have an (internal) MoU/SLA or whatever.
GS: There really is no such thing as an internal MoU/SLA. Both of these are agreements (just like the IANA Functions Contract), and need to be made between two or more legal entities capable of contracting. If the MRT-like structure is internal to ICANN, it can't have a contract with ICANN -- that would be ICANN contracting with itself. The "whatever" would have to be an internal document of a non-contractual/non-agreement nature. Conceivably, it could be a policy. If it is a policy, it would most likely have to go through an ICANN Policy Development Process. Would this be done separately by the ccNSO and the GNSO under their separate PDP guidelines? Or would we try to put together a joint PDP Working Group? And how long would this PDP take to develop an "IANA Functions Policy"? The other thing the IANA Functions Contract establishes is that the right to run the IANA Functions ultimately resides in Contract Co. ICANN's right to do it is purely contractual; essentially, ICANN is a licensee, and the MRT is a a licensor. Under this scenario, the current IANA Contract goes away, and ICANN is left holding the right to perform the IANA Functions. This means that the IANA Functions are now an inherent right of ICANN This is a very different overall set-up, with different consequences. Losing a right one has by contract is a very common problem, and is as old as contracts. Losing an inherent right and sector of services because a committee says that you have failed to live up to internal policies is both very uncommon and very novel, creating considerable uncertainty even if it is a technical possibility.
If the ICANN board would at a certain moment in time still decide not to follow orders of the MRT, I would assume it may be sued by affected parties for violating its own bylaws.
GS: Litigation should be a last resort, not a first resort, when it comes to enforcement. Contract Co. can terminate the contract (or decide not to sign another one when it expires). The MRT has no such ability. That is why you are suggesting litigation -- which is not an "internal-to-ICANN" solution at all. In addition to not being "internal-to-ICANN," litigation (in any jurisdiction) is expensive, lengthy and consumes great time and resources, and may not produce a result in any kind of useful timeframe. In any event, who are the "affected parties" that would sue? Is it only one registry, or is it many? What if it's a stakeholder group, such as "civil society"? If there are many litigants, they would need to enter into some sort of joint litigation agreement, form a coordinating group and deal with a whole host of other things. And not every affected party has a litigation war chest to go up against ICANN -- unlike Contract Co., which will be indemnified. I don't think there's any way that ICANN would agree to indemnify, defend and hold harmless every "affected party" that might challenge a decision relating to IANA Functions. So, litigation funding would be a very real issue. Finally, I'm not at all sure that the "affected parties" will have the standing to sue ICANN for violating its bylaws. This might be a right that a shareholder would have if ICANN had shareholders (but nonprofits don't have shareholders). Third parties may not have a cause of action here on that front, and would need to find some other theory that supports a lawsuit. By contrast, breach of contract litigation is fairly straightforward (not that I'm supporting litigation before other forms of escalation are exhausted).
We further may dictate in the bylaws that ICANN has to give up the IANA function if decided by this MRT and of course seal it by dictating that these specific articles may only be changed with the explicit consent of the MRT.”
GS: Again, I'm not at all sure we can dictate in the bylaws that ICANN has to "give up the IANA function if decided by the MRT." (By contrast, it's quite clear that ICANN can enter into enforceable obligation if it signs an agreement with a third party.) But again, let's assume it for the sake of argument. In your scenario, it is implicit that the right to perform the IANA Functions is an inherent right of ICANN, not a right granted to it by a third party. So instead of Contract Co. terminating an agreement, we have the ICANN Board being instructed to cause ICANN to cease part of its services. I am much more skeptical that this is a realistic assumption, especially since it could run counter to the fiduciary duty of the Directors to ICANN. (By contrast, I don't see the MRT instructing Contract Co. to do something counter to Contract Co.'s interests, given the limited scope and purpose of Contract Co.) But let's go on. The concept of ICANN "giving up" the IANA functions is quite nebulous. Since it's an inherent right of ICANN's, ICANN would have to run the RFP to find the next IANA Functions Operator. Are you assuming that the MRT will do this as well, rather than ICANN? That seems like another big assumption. And what exactly would ICANN be transferring? If it is an asset of ICANN, it may expect compensation for it (indeed there could be fiduciary duty issues if the Board "gives it away." Also, once the IANA Functions are transferred away from ICANN, how will oversight and accountability continue (since all of the oversight and accountability is "internal-to-ICANN") -- this seems like quite a big issue in terms of "separability," actually. Will the new IANA be required by the RFP to amend its bylaws and replicate the MRT and the CSC and the IAP (and the IRB) to match the current set-up? Another big difference (and I think a disadvantage) is that there is no periodic expiration of the IANA Contract, with the implicit or explicit promise of an RFP or at least a re-examination of the terms of the agreement. In essence, this now becomes ICANN's right in perpetuity, unless it fails to properly perform the IANA Functions in a very significant and ongoing way. Finally, while there are ways to limit bylaw changes that i am aware of under US law (e.g., supermajority voting combined with board structuring), I really don't think that this power can be put into the hands of the MRT without a host of other governance changes to ICANN. Of course, without research I can't be sure, and it may be that some significant reworking of ICANN's overall Board and governance structure could elicit this result. But that would require further research and consideration. Overall, this seems a lot more complex and uncertain than the set-up in the Draft Proposal. This also does not deal with operational aspects of replacing NTIA. In addition to an MRT-like structure, are you also assuming a CSC-like structure to provide basic operational oversight of the IANA Functions and an Appeals Panel for disputes regarding how the IANA Functions are carried out? If so, there's no real advantage in terms of the level of complexity (and probably a disadvantage, at that). In any event, any proposal has to deal with more than just separability.
I know it is (still) very rough and I directly agree that separating the IANA function will in a legal sense probably be a lot more difficult, I think it would be possible under my legal system at home.
GS: I am not sure that this is impossible, but there are a number of very fundamental "ifs" and assumptions here that seem to make this speculative and uncertain in the extreme, with no virtue other than to be "internal-to-ICANN." I also don't see the advantages of this set-up, but perhaps I am missing something. Greg
Appreciate your response.
Best,
Maarten
*From:* cwg-stewardship-bounces@icann.org [mailto: cwg-stewardship-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* maandag 8 december 2014 19:49 *To:* Seun Ojedeji *Cc:* cwg-stewardship@icann.org *Subject:* Re: [CWG-Stewardship] Strickling Remarks from 4 December re IANA Transition and Accountability
My replies are inline.
Greg
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On Mon, Dec 8, 2014 at 5:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On Mon, Dec 8, 2014 at 6:18 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
My responses are inline below.
In fact, it's up to us to identify the *IANA-specific* aspects of accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started.
If i may ask, if this group is able to put in place mechanisms that ensure the function operator is indeed accountable...why/what then is the need for the MRT and CSC?
The MRT and CSC are integral parts of our accountability mechanisms, along with the contract (and the ability to terminate it) and the independent Appeals Panel. What do you think our accountability mechanisms are?
Greg i think you did not get my point. My point is that the major accountability requirement that is IANA specific is that which is related to ensuring implementation based on existing policies. So if this group (or the cwg on accountability) is able to fashion out an internal mechanism that guarantees that aspect. Why will we still need MRT?.
This group has always been "able," * as a matter of scope*, to fashion an internal-to-ICANN accountability mechanism. Similarly, NASA, as a matter of scope, has always been "able" to fly a rocket to Mars fueled by a jar of peanut butter. So, what is stopping us and NASA from accomplishing these objectives? At the very least, the lack of any sort of plan or proposal showing *how* one would accomplish this. So it is not a question of scope, it's a question of putting together a plan. Is this group "able" *as a practical matter* to put together a plan for an internal-to-ICANN accountability mechanism that meets the requirements and concerns of the NTIA and various stakeholders? So far, the answer seems to be "no." I'm open minded -- if someone puts forth a plan with a reasonable level of detail (e.g., strawman or draft proposal level of detail) and everyone probes it for flaws and asks for further details, which then get filled in, and if that plan, after making it through the gantlet of this group, looks viable, that would be a good thing. (And, of course, that plan might not include an MRT, or it would include a different sort of multistakeholder body.) However, it hasn't happened and I don't see any real movement toward it, and the time for such action is growing short. Unless there is some realistic movement forward on an "internal-to-ICANN" plan, the continued reference to the "internal-to-ICANN" concept has no shape and thus no value. Continuing to advocate for "internal-to-ICANN" is very much like a NASA scientist wandering the halls of NASA with a jar of peanut butter, shouting "To Mars!!" No matter how much that scientist critiques other plans for going to Mars, his "Peanut Butter Plan" will never be credible without more from him.
I may not have any issue if MRT's role does not include RFP and if the Contract Co is just signing of an MOU that is not term based, because at that point, the MRT will just be something similar to the cwg and will become very much less attractive (except that its waste of resources).
It seems you have an essential issue with separability -- you don't want a term and you don't want an RFP. So, essentially you want to give ICANN the right in perpetuity to be the IANA Functions Operator, subject perhaps to some completely undefined method for some completely undefined group to remove that right due to a completely undefined failure to meet completely undefined criteria. Well, I can't give the "undefined" any weight whatsoever.
I'm sorry you think that multistakeholder oversight of the IANA Functions is a "waste of resources." The NTIA and most of the people on this list (myself included) seem to think it is very valuable -- indeed, for the NTIA it is the essence of the transition. How do you propose to transfer the NTIA's functions to the global multistakeholder community without any sort of multistakeholder group?
This also will not in anyway reduce the possibility of moving IANA if need be.
I don't see how you can say this. You want to eliminate the only possibilities this CWG has defined to move IANA if need be. You propose no method or group or criteria by which moving IANA if need be could be achieved. Until you provide some alternative, you have reduced -- effectively to zero -- the possibility of moving IANA.
You are perhaps quite experienced in the gTLD space than i am, and realistically speaking i think the gTLD are the ones who should seek a permanent solution that makes the role reside within ICANN because everything about the gTLD currently exist within ICANN and it will not make any economic sense to move it out. So i find it strange that even if there is adequate accountability in place within ICANN, you will still insist on going the contracting route.
Adequate accountability within ICANN is a necessity before we move forward with any transition. However adequate accountability within ICANN is not sufficient -- we need adequate accountability within ICANN *directly related to performance of (or failure to properly perform) the IANA Functions*. This type of accountability is within the scope of this CWG (and not the Accountability CCWG), and so far, we have not seen any plan or proposal for such accountability that is adequate and responds to the concerns regarding separability, etc. I am not insisting on anything with regard to the contracting route. To the contrary, I remain open-minded. If we had an "internal to ICANN" plan that looked like it worked for all our purposes and didn't involve a contract, I would love to look at it and subject it to the same scrutiny that the current proposal has been subjected to. After that, who knows what would happen?
In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current *general* accountability issues, not because of them.
Negative...i don't agree that is the best approach and again i don't know how you already determine the proposal is efficient especially when we don't even have the details yet. There are definitely other options that allows moving of IANA from ICANN (if absolutely required) one of which does not even require any contracting/MOU/agreement (which can be implemented by the technical community)
We don't have all the details, but we have 10 pages of detail, enough to make a preliminary judgment. These other options -- what detail is there for these options? What framework is there for these options? Until there is at least a "strawman" level of detail, these other "options" aren't options at all -- they are just empty catchphrases.
Greg, please do not over-estimate multistakeholder settings especially when it has not been put to practice (as it is in this particular case). That 10page details has not touched critical aspect of MRT which is mainly its formation and charter plus the connection between MRT and contract co (it is not enough to call this a self company....the details is what is important)
Perhaps I have greater faith in the multistakeholder model than you do. Of course, we will not know how it works in practice until it is in practice -- but that's true of any plan. We are developing details and we will be subjecting the model to stress tests, so we should know as much anyone with a plan knows about how that plan will work in practice. Given that our goal is to transition NTIA's roles to the global multistakeholder community, we have to have some level of faith in the multistakeholder model. Otherwise, we should just tell the NTIA that transitioning their role to the global multistakeholder community can't be done. I agree that we need to flesh out how the MRT will be formed and what its charter might look like -- what are your suggestions for these aspects that would give you greater comfort? The connection between MRT and Contract Co. does need to be fleshed out as well -- I envision this as being written into Contract Co.'s bylaws. And by the way, I never called Contact Co. a "shelf company" -- it will be lightweight and limited but by definition, it can't be a shelf company. A shelf company (at least as this term is used in the U.S., refers to an inactive (and never activated) corporation -- it has no assets or liabilities, it has entered into no contracts or other obligations of any kind, it typically has a single "incorporator" rather than a full slate of officers and directors, and it has generic short-form documents rather than any kind of specially-drafted articles of incorporation or bylaws. Contract Co. should be as close as possible to a "shelf corporation".while still being able to perform its duties and meet the needs of the framework (which actually requires a fairly specifically-developed set of by-laws to keep it small and limited).
Without diminishing the importance of details -- the details are only important if the general framework looks promising and appropriate. I think we have that, and we have a good understanding of the principles that the details must meet to be acceptable to this group and the larger multistakeholder community. Now it's just a matter of following those principles and filling in the details -- not a small task, but not one to be overestimated either.
To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- *and will continue to lack *-- appropriate *general* accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend *IANA-specific* accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done.
Greg, you mentioned earlier that the ability to move IANA is required (although i don't necessarily agree but it doesn't hurt to have it) so if there are adequate mechanism within ICANN wouldn't all that will be required is for the mechanism to trigger movement of IANA from ICANN? Why then do we require all the MRT/CSC structure? I also don't agree that NTIA said we should replicate contracting processes (you may direct me to what part of NTIA announcement that implied such)
.
There is broad support for separability in the CWG. It's in our Principles (letter h) and it's in our Draft Proposal. You are entitled to disagree, but unless you can convince the CWG to change the Principles and the Proposal, any option we recommend must include separability.,
Well the principles is still in draft state (unless you mean it has just been finalised), in anycase, i have no problem with maintaining the current separability and this is something that can still be maintained internally by adding a few lines in the by-law
The Principles may be in draft but they have broad support, and they are heading toward finality. So it is certainly most appropriate to consider them heavily in examining any proposal. Right now, the current separability is entirely a creation of the IANA Contract -- I"m glad you have no problem maintaining the type of separability now embodied in the contract. However, you go on to say that this separability "can still be maintained internally by adding a few lines in the by-law." I find this assumption completely unsupported and thus completely lacking in credibility and value. Why do you think this is true? What would you put in the by-laws (by-laws aren't magic, they require words that work)? How would this work? What and who would trigger the separation? What would be the method for actually separating and finding a new Operator? Without answers to these questions, you are just running through the halls of the CWG with a jar of peanut butter, shouting "To Mars!" I'm not buying it -- not because I believe it's impossible -- but because I've been shown nothing on a functional level that makes me believe it is possible.
You say "if there are adequate mechanisms within ICANN...." What are these "adequate mechanisms"? Where would they come from? Remember, it's up to our CWG to come up with mechanisms relating to IANA accountability.
.....and this is the issue, we treat IANA accountability as if its rocket science, i think it may have been a mistake to have separated the CWG as its making it all look like the accountability this group is looking for is different from what the CWG-accountability is looking for.
It's not rocket science, and I don't believe we are treating it that way. It's just hard work. Whether having two CWGs is a mistake is beside the point. The accountability this group is looking for *IS* different from the accountability the CWG-Accountability is looking for. As I pointed out earlier in this thread:
*The key point I am making is that the "IANA specific aspect of the accountability" is within the scope of our CWG, and has been since the beginning of our work. As it says in our Charter: "Accountability for the administration of the IANA functions (i.e.,implementation and operational accountability), however, is properly within the scope of this working group." Conversely, the Charter of CCWG-Accountability says "**Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship."*
The CWG-Accountability is looking at the much broader question of enhancing ICANN's accountability to its stakeholders in all of its policy-making, implementing, operations, etc. -- everything *but* the accountability we are looking for.
Your "mechanism" is a complete mystery. If you want this group to consider an "internal to ICANN" mechanism that would move the right to perform the IANA Functions out of ICANN (and meet all the other requirements in this transition), you'll need to propose one.
The NTIA asks us to develop a proposal that transitions its stewardship to multi-stakeholder. It didn't say that the proposal has to be able to take the right to perform IANA function out of ICANN.
I agree that the NTIA did not say that our proposal has to be able to take the right to perform the IANA functions out of ICANN. However, the NTIA also did not preclude a proposal that takes the right to perform the IANA Functions out of ICANN. There was broad support within the CWG for a proposal that included the possibility and ability to take the right to perform the IANA Functions out of ICANN, and therefore that is in our proposal.
The way i interpreted it is that ICANN currently has a growing multi-stakeholder environment and this is the opportunity to transition the stewardship to that community so if this require updating ICANN-by law...so be it.
First, the NTIA did not refer to the "ICANN multistakeholder community," it referred to the "global multistakeholder community." These are not the same things. Nonetheless, I don't believe that this necessarily precludes an "internal-to-ICANN" solution, but it does mean that any such solution would have to bring stakeholders not present in ICANN into the oversight and accountability process. As for updating the ICANN by-laws, this not a magic wand. Without some idea of what this means (and I've asked a few questions above so that I and others can get some idea), saying "update the ICANN by-laws" is no more valuable than that NASA scientist saying "peanut butter."
Please note that I am not categorically precluding an "internal-to-ICANN" proposal. But right now, I don't see where that proposal is coming from, much less how it will satisfy even the most basic concerns of various stakeholders.
It is when we propose such and it gets rejected by ICANN board that we can justify that ICANN is not yet mature enough and a contracting route will suffice until there is significant indications of the organisation's maturity
First, we have to have a reasonably tangible and concrete "Internal-to-ICANN" proposal before the CWG, and that proposal has be further developed by and win the support of the CWG. We don't have even the first step of that , so your scenario above never happens. If it does happen, it's because the CWG decides that this "internal-to-ICANN" is the best proposal, not because we want to test the ICANN Board's "maturity", before putting forth the current draft proposal. I am confident we will put forth the proposal that gains the most support from the CWG and the stakeholders, regardless of whether the ICANN Board will like it. Right now, that seems likely to be a proposal growing out of the current draft proposal, since there is no other tangible proposal on the table. In any event, whether the ICANN Board would or even has the power to "reject" the proposal is open to question. As the ICG FAQ states:
*15. How will ICANN Board handle the final proposal submitted by the ICG?*
*The ICG expects that its proposal, having achieved consensus on the Coordination Group and within the Operational Communities, will be welcomed by the ICANN Board and dutifully transmitted to NTIA*
Finally, I never said that the NTIA said we should replicate contracting processes. What makes you say that?
Well you have just implied that in your statement below
No, I have not. I didn't even mention the NTIA. Please don't put words in my mouth.
However, unless we have another way to accomplish our objectives, the contract remains the most practical option.
I have "paraphrased" what i believe to be our objective above.
I'm not sure what you are referring to, or what your point is. Whatever your paraphrase is, our objectives are already well stated in the NTIA's announcement, the ICG RFP and our charter, so hopefully your paraphrase is consistent with those base document.
Regards,
Greg
Regards
Greg
Thanks
Regards!
Greg
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On Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos.
On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun:
I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so.
The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope.
I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need.
In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along.
Greg
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On Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos.
On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
All:
I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability:
I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression.
Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model.
The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model.
In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation.
A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.”
Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today.
This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues.
When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.
Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands.
We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.”
The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years.
ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place.
The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place.
I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community.
Getting the transition right will be a major project for NTIA in 2015.
The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str...
An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...>
Greg
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
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*Seun Ojedeji, Federal University Oye-Ekiti web: * *http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> **Mobile: +2348035233535 <%2B2348035233535>* *alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
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*Seun Ojedeji, Federal University Oye-Ekiti web: * *http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> **Mobile: +2348035233535 <%2B2348035233535>* *alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
Thanks for this detailed response, Greg. I think it pretty well lays to rest the “internalist” argument. --MM “If we could arrange via the bylaws that the ICANN board explicitly has to follow orders from a MRT-like structure, GS: This is a pretty big "if." Unlike Contract Co., which would be built from the ground up to be a corporation with very limited purpose and goals and limitations upon its directors and officer, and thus lends itself to this "following orders" model, ICANN is an existing organization with a large board and officer group and many activities. At best, this type of organization does not lend itself to such a model. At worst, it's not even possible. But let's assume, solely for the sake of argument, that the ICANN bylaws can be modified in this fashion. I am assuming that the MRT will be "internal-to-ICANN" like the current SOs and ACs (and in contrast to the ICG). Is that correct? If so, how do you involve the global multistakeholder community (beyond ICANN) as required by the NTIA? we might not need a contract but have an (internal) MoU/SLA or whatever. GS: There really is no such thing as an internal MoU/SLA. Both of these are agreements (just like the IANA Functions Contract), and need to be made between two or more legal entities capable of contracting. If the MRT-like structure is internal to ICANN, it can't have a contract with ICANN -- that would be ICANN contracting with itself. The "whatever" would have to be an internal document of a non-contractual/non-agreement nature. Conceivably, it could be a policy. If it is a policy, it would most likely have to go through an ICANN Policy Development Process. Would this be done separately by the ccNSO and the GNSO under their separate PDP guidelines? Or would we try to put together a joint PDP Working Group? And how long would this PDP take to develop an "IANA Functions Policy"? The other thing the IANA Functions Contract establishes is that the right to run the IANA Functions ultimately resides in Contract Co. ICANN's right to do it is purely contractual; essentially, ICANN is a licensee, and the MRT is a a licensor. Under this scenario, the current IANA Contract goes away, and ICANN is left holding the right to perform the IANA Functions. This means that the IANA Functions are now an inherent right of ICANN This is a very different overall set-up, with different consequences. Losing a right one has by contract is a very common problem, and is as old as contracts. Losing an inherent right and sector of services because a committee says that you have failed to live up to internal policies is both very uncommon and very novel, creating considerable uncertainty even if it is a technical possibility. If the ICANN board would at a certain moment in time still decide not to follow orders of the MRT, I would assume it may be sued by affected parties for violating its own bylaws. GS: Litigation should be a last resort, not a first resort, when it comes to enforcement. Contract Co. can terminate the contract (or decide not to sign another one when it expires). The MRT has no such ability. That is why you are suggesting litigation -- which is not an "internal-to-ICANN" solution at all. In addition to not being "internal-to-ICANN," litigation (in any jurisdiction) is expensive, lengthy and consumes great time and resources, and may not produce a result in any kind of useful timeframe. In any event, who are the "affected parties" that would sue? Is it only one registry, or is it many? What if it's a stakeholder group, such as "civil society"? If there are many litigants, they would need to enter into some sort of joint litigation agreement, form a coordinating group and deal with a whole host of other things. And not every affected party has a litigation war chest to go up against ICANN -- unlike Contract Co., which will be indemnified. I don't think there's any way that ICANN would agree to indemnify, defend and hold harmless every "affected party" that might challenge a decision relating to IANA Functions. So, litigation funding would be a very real issue. Finally, I'm not at all sure that the "affected parties" will have the standing to sue ICANN for violating its bylaws. This might be a right that a shareholder would have if ICANN had shareholders (but nonprofits don't have shareholders). Third parties may not have a cause of action here on that front, and would need to find some other theory that supports a lawsuit. By contrast, breach of contract litigation is fairly straightforward (not that I'm supporting litigation before other forms of escalation are exhausted). We further may dictate in the bylaws that ICANN has to give up the IANA function if decided by this MRT and of course seal it by dictating that these specific articles may only be changed with the explicit consent of the MRT.” GS: Again, I'm not at all sure we can dictate in the bylaws that ICANN has to "give up the IANA function if decided by the MRT." (By contrast, it's quite clear that ICANN can enter into enforceable obligation if it signs an agreement with a third party.) But again, let's assume it for the sake of argument. In your scenario, it is implicit that the right to perform the IANA Functions is an inherent right of ICANN, not a right granted to it by a third party. So instead of Contract Co. terminating an agreement, we have the ICANN Board being instructed to cause ICANN to cease part of its services. I am much more skeptical that this is a realistic assumption, especially since it could run counter to the fiduciary duty of the Directors to ICANN. (By contrast, I don't see the MRT instructing Contract Co. to do something counter to Contract Co.'s interests, given the limited scope and purpose of Contract Co.) But let's go on. The concept of ICANN "giving up" the IANA functions is quite nebulous. Since it's an inherent right of ICANN's, ICANN would have to run the RFP to find the next IANA Functions Operator. Are you assuming that the MRT will do this as well, rather than ICANN? That seems like another big assumption. And what exactly would ICANN be transferring? If it is an asset of ICANN, it may expect compensation for it (indeed there could be fiduciary duty issues if the Board "gives it away." Also, once the IANA Functions are transferred away from ICANN, how will oversight and accountability continue (since all of the oversight and accountability is "internal-to-ICANN") -- this seems like quite a big issue in terms of "separability," actually. Will the new IANA be required by the RFP to amend its bylaws and replicate the MRT and the CSC and the IAP (and the IRB) to match the current set-up? Another big difference (and I think a disadvantage) is that there is no periodic expiration of the IANA Contract, with the implicit or explicit promise of an RFP or at least a re-examination of the terms of the agreement. In essence, this now becomes ICANN's right in perpetuity, unless it fails to properly perform the IANA Functions in a very significant and ongoing way. Finally, while there are ways to limit bylaw changes that i am aware of under US law (e.g., supermajority voting combined with board structuring), I really don't think that this power can be put into the hands of the MRT without a host of other governance changes to ICANN. Of course, without research I can't be sure, and it may be that some significant reworking of ICANN's overall Board and governance structure could elicit this result. But that would require further research and consideration. Overall, this seems a lot more complex and uncertain than the set-up in the Draft Proposal. This also does not deal with operational aspects of replacing NTIA. In addition to an MRT-like structure, are you also assuming a CSC-like structure to provide basic operational oversight of the IANA Functions and an Appeals Panel for disputes regarding how the IANA Functions are carried out? If so, there's no real advantage in terms of the level of complexity (and probably a disadvantage, at that). In any event, any proposal has to deal with more than just separability. I know it is (still) very rough and I directly agree that separating the IANA function will in a legal sense probably be a lot more difficult, I think it would be possible under my legal system at home. GS: I am not sure that this is impossible, but there are a number of very fundamental "ifs" and assumptions here that seem to make this speculative and uncertain in the extreme, with no virtue other than to be "internal-to-ICANN." I also don't see the advantages of this set-up, but perhaps I am missing something. Greg Appreciate your response. Best, Maarten From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org>] On Behalf Of Greg Shatan Sent: maandag 8 december 2014 19:49 To: Seun Ojedeji Cc: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] Strickling Remarks from 4 December re IANA Transition and Accountability My replies are inline. Greg Gregory S. Shatan • Abelman Frayne & Schwab 666 Third Avenue • New York, NY 10017-5621 Direct 212-885-9253<tel:212-885-9253> | Main 212-949-9022<tel:212-949-9022> Fax 212-949-9190<tel:212-949-9190> | Cell 917-816-6428<tel:917-816-6428> gsshatan@lawabel.com<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Mon, Dec 8, 2014 at 5:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: On Mon, Dec 8, 2014 at 6:18 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: My responses are inline below. In fact, it's up to us to identify the IANA-specific aspects of accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started. If i may ask, if this group is able to put in place mechanisms that ensure the function operator is indeed accountable...why/what then is the need for the MRT and CSC? The MRT and CSC are integral parts of our accountability mechanisms, along with the contract (and the ability to terminate it) and the independent Appeals Panel. What do you think our accountability mechanisms are? Greg i think you did not get my point. My point is that the major accountability requirement that is IANA specific is that which is related to ensuring implementation based on existing policies. So if this group (or the cwg on accountability) is able to fashion out an internal mechanism that guarantees that aspect. Why will we still need MRT?. This group has always been "able," as a matter of scope, to fashion an internal-to-ICANN accountability mechanism. Similarly, NASA, as a matter of scope, has always been "able" to fly a rocket to Mars fueled by a jar of peanut butter. So, what is stopping us and NASA from accomplishing these objectives? At the very least, the lack of any sort of plan or proposal showing how one would accomplish this. So it is not a question of scope, it's a question of putting together a plan. Is this group "able" as a practical matter to put together a plan for an internal-to-ICANN accountability mechanism that meets the requirements and concerns of the NTIA and various stakeholders? So far, the answer seems to be "no." I'm open minded -- if someone puts forth a plan with a reasonable level of detail (e.g., strawman or draft proposal level of detail) and everyone probes it for flaws and asks for further details, which then get filled in, and if that plan, after making it through the gantlet of this group, looks viable, that would be a good thing. (And, of course, that plan might not include an MRT, or it would include a different sort of multistakeholder body.) However, it hasn't happened and I don't see any real movement toward it, and the time for such action is growing short. Unless there is some realistic movement forward on an "internal-to-ICANN" plan, the continued reference to the "internal-to-ICANN" concept has no shape and thus no value. Continuing to advocate for "internal-to-ICANN" is very much like a NASA scientist wandering the halls of NASA with a jar of peanut butter, shouting "To Mars!!" No matter how much that scientist critiques other plans for going to Mars, his "Peanut Butter Plan" will never be credible without more from him. I may not have any issue if MRT's role does not include RFP and if the Contract Co is just signing of an MOU that is not term based, because at that point, the MRT will just be something similar to the cwg and will become very much less attractive (except that its waste of resources). It seems you have an essential issue with separability -- you don't want a term and you don't want an RFP. So, essentially you want to give ICANN the right in perpetuity to be the IANA Functions Operator, subject perhaps to some completely undefined method for some completely undefined group to remove that right due to a completely undefined failure to meet completely undefined criteria. Well, I can't give the "undefined" any weight whatsoever. I'm sorry you think that multistakeholder oversight of the IANA Functions is a "waste of resources." The NTIA and most of the people on this list (myself included) seem to think it is very valuable -- indeed, for the NTIA it is the essence of the transition. How do you propose to transfer the NTIA's functions to the global multistakeholder community without any sort of multistakeholder group? This also will not in anyway reduce the possibility of moving IANA if need be. I don't see how you can say this. You want to eliminate the only possibilities this CWG has defined to move IANA if need be. You propose no method or group or criteria by which moving IANA if need be could be achieved. Until you provide some alternative, you have reduced -- effectively to zero -- the possibility of moving IANA. You are perhaps quite experienced in the gTLD space than i am, and realistically speaking i think the gTLD are the ones who should seek a permanent solution that makes the role reside within ICANN because everything about the gTLD currently exist within ICANN and it will not make any economic sense to move it out. So i find it strange that even if there is adequate accountability in place within ICANN, you will still insist on going the contracting route. Adequate accountability within ICANN is a necessity before we move forward with any transition. However adequate accountability within ICANN is not sufficient -- we need adequate accountability within ICANN directly related to performance of (or failure to properly perform) the IANA Functions. This type of accountability is within the scope of this CWG (and not the Accountability CCWG), and so far, we have not seen any plan or proposal for such accountability that is adequate and responds to the concerns regarding separability, etc. I am not insisting on anything with regard to the contracting route. To the contrary, I remain open-minded. If we had an "internal to ICANN" plan that looked like it worked for all our purposes and didn't involve a contract, I would love to look at it and subject it to the same scrutiny that the current proposal has been subjected to. After that, who knows what would happen? In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current general accountability issues, not because of them. Negative...i don't agree that is the best approach and again i don't know how you already determine the proposal is efficient especially when we don't even have the details yet. There are definitely other options that allows moving of IANA from ICANN (if absolutely required) one of which does not even require any contracting/MOU/agreement (which can be implemented by the technical community) We don't have all the details, but we have 10 pages of detail, enough to make a preliminary judgment. These other options -- what detail is there for these options? What framework is there for these options? Until there is at least a "strawman" level of detail, these other "options" aren't options at all -- they are just empty catchphrases. Greg, please do not over-estimate multistakeholder settings especially when it has not been put to practice (as it is in this particular case). That 10page details has not touched critical aspect of MRT which is mainly its formation and charter plus the connection between MRT and contract co (it is not enough to call this a self company....the details is what is important) Perhaps I have greater faith in the multistakeholder model than you do. Of course, we will not know how it works in practice until it is in practice -- but that's true of any plan. We are developing details and we will be subjecting the model to stress tests, so we should know as much anyone with a plan knows about how that plan will work in practice. Given that our goal is to transition NTIA's roles to the global multistakeholder community, we have to have some level of faith in the multistakeholder model. Otherwise, we should just tell the NTIA that transitioning their role to the global multistakeholder community can't be done. I agree that we need to flesh out how the MRT will be formed and what its charter might look like -- what are your suggestions for these aspects that would give you greater comfort? The connection between MRT and Contract Co. does need to be fleshed out as well -- I envision this as being written into Contract Co.'s bylaws. And by the way, I never called Contact Co. a "shelf company" -- it will be lightweight and limited but by definition, it can't be a shelf company. A shelf company (at least as this term is used in the U.S., refers to an inactive (and never activated) corporation -- it has no assets or liabilities, it has entered into no contracts or other obligations of any kind, it typically has a single "incorporator" rather than a full slate of officers and directors, and it has generic short-form documents rather than any kind of specially-drafted articles of incorporation or bylaws. Contract Co. should be as close as possible to a "shelf corporation".while still being able to perform its duties and meet the needs of the framework (which actually requires a fairly specifically-developed set of by-laws to keep it small and limited). Without diminishing the importance of details -- the details are only important if the general framework looks promising and appropriate. I think we have that, and we have a good understanding of the principles that the details must meet to be acceptable to this group and the larger multistakeholder community. Now it's just a matter of following those principles and filling in the details -- not a small task, but not one to be overestimated either. To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- and will continue to lack -- appropriate general accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend IANA-specific accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done. Greg, you mentioned earlier that the ability to move IANA is required (although i don't necessarily agree but it doesn't hurt to have it) so if there are adequate mechanism within ICANN wouldn't all that will be required is for the mechanism to trigger movement of IANA from ICANN? Why then do we require all the MRT/CSC structure? I also don't agree that NTIA said we should replicate contracting processes (you may direct me to what part of NTIA announcement that implied such) . There is broad support for separability in the CWG. It's in our Principles (letter h) and it's in our Draft Proposal. You are entitled to disagree, but unless you can convince the CWG to change the Principles and the Proposal, any option we recommend must include separability., Well the principles is still in draft state (unless you mean it has just been finalised), in anycase, i have no problem with maintaining the current separability and this is something that can still be maintained internally by adding a few lines in the by-law The Principles may be in draft but they have broad support, and they are heading toward finality. So it is certainly most appropriate to consider them heavily in examining any proposal. Right now, the current separability is entirely a creation of the IANA Contract -- I"m glad you have no problem maintaining the type of separability now embodied in the contract. However, you go on to say that this separability "can still be maintained internally by adding a few lines in the by-law." I find this assumption completely unsupported and thus completely lacking in credibility and value. Why do you think this is true? What would you put in the by-laws (by-laws aren't magic, they require words that work)? How would this work? What and who would trigger the separation? What would be the method for actually separating and finding a new Operator? Without answers to these questions, you are just running through the halls of the CWG with a jar of peanut butter, shouting "To Mars!" I'm not buying it -- not because I believe it's impossible -- but because I've been shown nothing on a functional level that makes me believe it is possible. You say "if there are adequate mechanisms within ICANN...." What are these "adequate mechanisms"? Where would they come from? Remember, it's up to our CWG to come up with mechanisms relating to IANA accountability. .....and this is the issue, we treat IANA accountability as if its rocket science, i think it may have been a mistake to have separated the CWG as its making it all look like the accountability this group is looking for is different from what the CWG-accountability is looking for. It's not rocket science, and I don't believe we are treating it that way. It's just hard work. Whether having two CWGs is a mistake is beside the point. The accountability this group is looking for IS different from the accountability the CWG-Accountability is looking for. As I pointed out earlier in this thread: The key point I am making is that the "IANA specific aspect of the accountability" is within the scope of our CWG, and has been since the beginning of our work. As it says in our Charter: "Accountability for the administration of the IANA functions (i.e.,implementation and operational accountability), however, is properly within the scope of this working group." Conversely, the Charter of CCWG-Accountability says "Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship." The CWG-Accountability is looking at the much broader question of enhancing ICANN's accountability to its stakeholders in all of its policy-making, implementing, operations, etc. -- everything but the accountability we are looking for. Your "mechanism" is a complete mystery. If you want this group to consider an "internal to ICANN" mechanism that would move the right to perform the IANA Functions out of ICANN (and meet all the other requirements in this transition), you'll need to propose one. The NTIA asks us to develop a proposal that transitions its stewardship to multi-stakeholder. It didn't say that the proposal has to be able to take the right to perform IANA function out of ICANN. I agree that the NTIA did not say that our proposal has to be able to take the right to perform the IANA functions out of ICANN. However, the NTIA also did not preclude a proposal that takes the right to perform the IANA Functions out of ICANN. There was broad support within the CWG for a proposal that included the possibility and ability to take the right to perform the IANA Functions out of ICANN, and therefore that is in our proposal. The way i interpreted it is that ICANN currently has a growing multi-stakeholder environment and this is the opportunity to transition the stewardship to that community so if this require updating ICANN-by law...so be it. First, the NTIA did not refer to the "ICANN multistakeholder community," it referred to the "global multistakeholder community." These are not the same things. Nonetheless, I don't believe that this necessarily precludes an "internal-to-ICANN" solution, but it does mean that any such solution would have to bring stakeholders not present in ICANN into the oversight and accountability process. As for updating the ICANN by-laws, this not a magic wand. Without some idea of what this means (and I've asked a few questions above so that I and others can get some idea), saying "update the ICANN by-laws" is no more valuable than that NASA scientist saying "peanut butter." Please note that I am not categorically precluding an "internal-to-ICANN" proposal. But right now, I don't see where that proposal is coming from, much less how it will satisfy even the most basic concerns of various stakeholders. It is when we propose such and it gets rejected by ICANN board that we can justify that ICANN is not yet mature enough and a contracting route will suffice until there is significant indications of the organisation's maturity First, we have to have a reasonably tangible and concrete "Internal-to-ICANN" proposal before the CWG, and that proposal has be further developed by and win the support of the CWG. We don't have even the first step of that , so your scenario above never happens. If it does happen, it's because the CWG decides that this "internal-to-ICANN" is the best proposal, not because we want to test the ICANN Board's "maturity", before putting forth the current draft proposal. I am confident we will put forth the proposal that gains the most support from the CWG and the stakeholders, regardless of whether the ICANN Board will like it. Right now, that seems likely to be a proposal growing out of the current draft proposal, since there is no other tangible proposal on the table. In any event, whether the ICANN Board would or even has the power to "reject" the proposal is open to question. As the ICG FAQ states: 15. How will ICANN Board handle the final proposal submitted by the ICG? The ICG expects that its proposal, having achieved consensus on the Coordination Group and within the Operational Communities, will be welcomed by the ICANN Board and dutifully transmitted to NTIA Finally, I never said that the NTIA said we should replicate contracting processes. What makes you say that? Well you have just implied that in your statement below No, I have not. I didn't even mention the NTIA. Please don't put words in my mouth. However, unless we have another way to accomplish our objectives, the contract remains the most practical option. I have "paraphrased" what i believe to be our objective above. I'm not sure what you are referring to, or what your point is. Whatever your paraphrase is, our objectives are already well stated in the NTIA's announcement, the ICG RFP and our charter, so hopefully your paraphrase is consistent with those base document. Regards, Greg Regards Greg Thanks Regards! Greg Gregory S. Shatan • Abelman Frayne & Schwab 666 Third Avenue • New York, NY 10017-5621 Direct 212-885-9253<tel:212-885-9253> | Main 212-949-9022<tel:212-949-9022> Fax 212-949-9190<tel:212-949-9190> | Cell 917-816-6428<tel:917-816-6428> gsshatan@lawabel.com<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Greg, I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Seun: I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so. The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope. I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need. In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along. Greg Gregory S. Shatan • Abelman Frayne & Schwab 666 Third Avenue • New York, NY 10017-5621 Direct 212-885-9253<tel:212-885-9253> | Main 212-949-9022<tel:212-949-9022> Fax 212-949-9190<tel:212-949-9190> | Cell 917-816-6428<tel:917-816-6428> gsshatan@lawabel.com<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: All: I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability: I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression. Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model. The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model. In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation. A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.” Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today. This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues. When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet. Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands. We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.” The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years. ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place. The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place. I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community. Getting the transition right will be a major project for NTIA in 2015. The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str... An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_accountability_no_iana/<http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_accountability_no_iana/> Greg Gregory S. Shatan • Abelman Frayne & Schwab 666 Third Avenue • New York, NY 10017-5621 Direct 212-885-9253<tel:212-885-9253> | Main 212-949-9022<tel:212-949-9022> Fax 212-949-9190<tel:212-949-9190> | Cell 917-816-6428<tel:917-816-6428> gsshatan@lawabel.com<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535<tel:%2B2348035233535> alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view ! -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535<tel:%2B2348035233535> alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view !
Thank you Greg for this. I have long thought that the notion that the ending of the functions contract should simply see stewardship pass over to ICANN was not workable in either a principled or a pragmatic sense. In principle because it creates no possibility of a future change mandated by the global multistakeholder community, and in practice because ICANN hasn't proven to be a community driven steward of the DNS. You've pointed out the many legal difficulties in maintaining adequate external oversight with an internal-to-ICANN settlement in this message. I cannot see how such an internal settlement preserves accountability either for IANA customers or for the Internet community. I would like to be proved wrong but I haven't so far heard a logic that points in the other direction. [It would be much easier if there was such a logic, so don't take the clarity and directness of my views as being closed to a different approach if it stands up.] To that needs to be added the broader experience of this year. ICANN's activity in calendar 2014 has included a number of efforts to limit and quarantine community involvement in this Stewardship Transition process, and in dividing and separating it from accountability concerns. The corporation's leadership has been forced to back down by the community and by the United States government on a number of occasions - at Singapore, at London, at the IGF in Istanbul. It appears the message that the community will drive this process as it sees fit was only fitfully accepted at the Los Angeles meeting. If I may be very direct, there simply cannot be any rational confidence that a settlement that hands stewardship in some internally managed way to ICANN is one that will achieve consensus or anything like it. The reason it cannot achieve consensus is that there is no logic that sets out an acceptable accountability process that is consistent with an internal settlement. It isn't because people don't want to see an idea like that work - it is because it logically *cannot* work. Even if all the practical realities of the year I note above had never happened, and ICANN had been over the past while a model, community-driven steward for the DNS, it would still be as a matter of principle a concern to create an internal settlement. The events of this year taken on its own, let alone the longer history, simply proves that it is unworkable in practice, as well as in principle. Finally, because it has to be said again and again: I have the utmost respect for the intentions and dedication of most ICANN participants and staff. Many do their job exceptionally well and in the interests of the community that they are there to serve. Please don't interpret my comments above as criticism, those staff reading this. best, Jordan On 11 December 2014 at 08:53, Greg Shatan <gregshatanipc@gmail.com> wrote:
Maarten:
My answers are inline below.
Greg
On Mon, Dec 8, 2014 at 5:46 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Hi Greg,
Although I personally have not made up my mind as yet if the contract co or an internal ICANN solution is preferable, I have posted a very rough idea for an internal solution in another thread that I have not seen your response to. I repeat it here as I am interested to here from you if you think it would be legally possible (apart from the fact that you probably do not support it for other reasons):
"If we could arrange via the bylaws that the ICANN board explicitly has to follow orders from a MRT-like structure,
GS: This is a pretty big "if." Unlike Contract Co., which would be built from the ground up to be a corporation with very limited purpose and goals and limitations upon its directors and officer, and thus lends itself to this "following orders" model, ICANN is an existing organization with a large board and officer group and many activities. At best, this type of organization does not lend itself to such a model. At worst, it's not even possible. But let's assume, solely for the sake of argument, that the ICANN bylaws can be modified in this fashion. I am assuming that the MRT will be "internal-to-ICANN" like the current SOs and ACs (and in contrast to the ICG). Is that correct? If so, how do you involve the global multistakeholder community (beyond ICANN) as required by the NTIA?
we might not need a contract but have an (internal) MoU/SLA or whatever.
GS: There really is no such thing as an internal MoU/SLA. Both of these are agreements (just like the IANA Functions Contract), and need to be made between two or more legal entities capable of contracting. If the MRT-like structure is internal to ICANN, it can't have a contract with ICANN -- that would be ICANN contracting with itself. The "whatever" would have to be an internal document of a non-contractual/non-agreement nature. Conceivably, it could be a policy. If it is a policy, it would most likely have to go through an ICANN Policy Development Process. Would this be done separately by the ccNSO and the GNSO under their separate PDP guidelines? Or would we try to put together a joint PDP Working Group? And how long would this PDP take to develop an "IANA Functions Policy"?
The other thing the IANA Functions Contract establishes is that the right to run the IANA Functions ultimately resides in Contract Co. ICANN's right to do it is purely contractual; essentially, ICANN is a licensee, and the MRT is a a licensor. Under this scenario, the current IANA Contract goes away, and ICANN is left holding the right to perform the IANA Functions. This means that the IANA Functions are now an inherent right of ICANN This is a very different overall set-up, with different consequences. Losing a right one has by contract is a very common problem, and is as old as contracts. Losing an inherent right and sector of services because a committee says that you have failed to live up to internal policies is both very uncommon and very novel, creating considerable uncertainty even if it is a technical possibility.
If the ICANN board would at a certain moment in time still decide not to follow orders of the MRT, I would assume it may be sued by affected parties for violating its own bylaws.
GS: Litigation should be a last resort, not a first resort, when it comes to enforcement. Contract Co. can terminate the contract (or decide not to sign another one when it expires). The MRT has no such ability. That is why you are suggesting litigation -- which is not an "internal-to-ICANN" solution at all. In addition to not being "internal-to-ICANN," litigation (in any jurisdiction) is expensive, lengthy and consumes great time and resources, and may not produce a result in any kind of useful timeframe. In any event, who are the "affected parties" that would sue? Is it only one registry, or is it many? What if it's a stakeholder group, such as "civil society"? If there are many litigants, they would need to enter into some sort of joint litigation agreement, form a coordinating group and deal with a whole host of other things. And not every affected party has a litigation war chest to go up against ICANN -- unlike Contract Co., which will be indemnified. I don't think there's any way that ICANN would agree to indemnify, defend and hold harmless every "affected party" that might challenge a decision relating to IANA Functions. So, litigation funding would be a very real issue.
Finally, I'm not at all sure that the "affected parties" will have the standing to sue ICANN for violating its bylaws. This might be a right that a shareholder would have if ICANN had shareholders (but nonprofits don't have shareholders). Third parties may not have a cause of action here on that front, and would need to find some other theory that supports a lawsuit. By contrast, breach of contract litigation is fairly straightforward (not that I'm supporting litigation before other forms of escalation are exhausted).
We further may dictate in the bylaws that ICANN has to give up the IANA function if decided by this MRT and of course seal it by dictating that these specific articles may only be changed with the explicit consent of the MRT."
GS: Again, I'm not at all sure we can dictate in the bylaws that ICANN has to "give up the IANA function if decided by the MRT." (By contrast, it's quite clear that ICANN can enter into enforceable obligation if it signs an agreement with a third party.) But again, let's assume it for the sake of argument. In your scenario, it is implicit that the right to perform the IANA Functions is an inherent right of ICANN, not a right granted to it by a third party. So instead of Contract Co. terminating an agreement, we have the ICANN Board being instructed to cause ICANN to cease part of its services. I am much more skeptical that this is a realistic assumption, especially since it could run counter to the fiduciary duty of the Directors to ICANN. (By contrast, I don't see the MRT instructing Contract Co. to do something counter to Contract Co.'s interests, given the limited scope and purpose of Contract Co.) But let's go on. The concept of ICANN "giving up" the IANA functions is quite nebulous. Since it's an inherent right of ICANN's, ICANN would have to run the RFP to find the next IANA Functions Operator. Are you assuming that the MRT will do this as well, rather than ICANN? That seems like another big assumption. And what exactly would ICANN be transferring? If it is an asset of ICANN, it may expect compensation for it (indeed there could be fiduciary duty issues if the Board "gives it away."
Also, once the IANA Functions are transferred away from ICANN, how will oversight and accountability continue (since all of the oversight and accountability is "internal-to-ICANN") -- this seems like quite a big issue in terms of "separability," actually. Will the new IANA be required by the RFP to amend its bylaws and replicate the MRT and the CSC and the IAP (and the IRB) to match the current set-up?
Another big difference (and I think a disadvantage) is that there is no periodic expiration of the IANA Contract, with the implicit or explicit promise of an RFP or at least a re-examination of the terms of the agreement. In essence, this now becomes ICANN's right in perpetuity, unless it fails to properly perform the IANA Functions in a very significant and ongoing way.
Finally, while there are ways to limit bylaw changes that i am aware of under US law (e.g., supermajority voting combined with board structuring), I really don't think that this power can be put into the hands of the MRT without a host of other governance changes to ICANN. Of course, without research I can't be sure, and it may be that some significant reworking of ICANN's overall Board and governance structure could elicit this result. But that would require further research and consideration.
Overall, this seems a lot more complex and uncertain than the set-up in the Draft Proposal. This also does not deal with operational aspects of replacing NTIA. In addition to an MRT-like structure, are you also assuming a CSC-like structure to provide basic operational oversight of the IANA Functions and an Appeals Panel for disputes regarding how the IANA Functions are carried out? If so, there's no real advantage in terms of the level of complexity (and probably a disadvantage, at that). In any event, any proposal has to deal with more than just separability.
I know it is (still) very rough and I directly agree that separating the IANA function will in a legal sense probably be a lot more difficult, I think it would be possible under my legal system at home.
GS: I am not sure that this is impossible, but there are a number of very fundamental "ifs" and assumptions here that seem to make this speculative and uncertain in the extreme, with no virtue other than to be "internal-to-ICANN." I also don't see the advantages of this set-up, but perhaps I am missing something.
Greg
Appreciate your response.
Best,
Maarten
*From:* cwg-stewardship-bounces@icann.org [mailto: cwg-stewardship-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* maandag 8 december 2014 19:49 *To:* Seun Ojedeji *Cc:* cwg-stewardship@icann.org *Subject:* Re: [CWG-Stewardship] Strickling Remarks from 4 December re IANA Transition and Accountability
My replies are inline.
Greg
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On Mon, Dec 8, 2014 at 5:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On Mon, Dec 8, 2014 at 6:18 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
My responses are inline below.
In fact, it's up to us to identify the *IANA-specific* aspects of accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started.
If i may ask, if this group is able to put in place mechanisms that ensure the function operator is indeed accountable...why/what then is the need for the MRT and CSC?
The MRT and CSC are integral parts of our accountability mechanisms, along with the contract (and the ability to terminate it) and the independent Appeals Panel. What do you think our accountability mechanisms are?
Greg i think you did not get my point. My point is that the major accountability requirement that is IANA specific is that which is related to ensuring implementation based on existing policies. So if this group (or the cwg on accountability) is able to fashion out an internal mechanism that guarantees that aspect. Why will we still need MRT?.
This group has always been "able," * as a matter of scope*, to fashion an internal-to-ICANN accountability mechanism. Similarly, NASA, as a matter of scope, has always been "able" to fly a rocket to Mars fueled by a jar of peanut butter. So, what is stopping us and NASA from accomplishing these objectives? At the very least, the lack of any sort of plan or proposal showing *how* one would accomplish this. So it is not a question of scope, it's a question of putting together a plan. Is this group "able" *as a practical matter* to put together a plan for an internal-to-ICANN accountability mechanism that meets the requirements and concerns of the NTIA and various stakeholders? So far, the answer seems to be "no." I'm open minded -- if someone puts forth a plan with a reasonable level of detail (e.g., strawman or draft proposal level of detail) and everyone probes it for flaws and asks for further details, which then get filled in, and if that plan, after making it through the gantlet of this group, looks viable, that would be a good thing. (And, of course, that plan might not include an MRT, or it would include a different sort of multistakeholder body.) However, it hasn't happened and I don't see any real movement toward it, and the time for such action is growing short. Unless there is some realistic movement forward on an "internal-to-ICANN" plan, the continued reference to the "internal-to-ICANN" concept has no shape and thus no value. Continuing to advocate for "internal-to-ICANN" is very much like a NASA scientist wandering the halls of NASA with a jar of peanut butter, shouting "To Mars!!" No matter how much that scientist critiques other plans for going to Mars, his "Peanut Butter Plan" will never be credible without more from him.
I may not have any issue if MRT's role does not include RFP and if the Contract Co is just signing of an MOU that is not term based, because at that point, the MRT will just be something similar to the cwg and will become very much less attractive (except that its waste of resources).
It seems you have an essential issue with separability -- you don't want a term and you don't want an RFP. So, essentially you want to give ICANN the right in perpetuity to be the IANA Functions Operator, subject perhaps to some completely undefined method for some completely undefined group to remove that right due to a completely undefined failure to meet completely undefined criteria. Well, I can't give the "undefined" any weight whatsoever.
I'm sorry you think that multistakeholder oversight of the IANA Functions is a "waste of resources." The NTIA and most of the people on this list (myself included) seem to think it is very valuable -- indeed, for the NTIA it is the essence of the transition. How do you propose to transfer the NTIA's functions to the global multistakeholder community without any sort of multistakeholder group?
This also will not in anyway reduce the possibility of moving IANA if need be.
I don't see how you can say this. You want to eliminate the only possibilities this CWG has defined to move IANA if need be. You propose no method or group or criteria by which moving IANA if need be could be achieved. Until you provide some alternative, you have reduced -- effectively to zero -- the possibility of moving IANA.
You are perhaps quite experienced in the gTLD space than i am, and realistically speaking i think the gTLD are the ones who should seek a permanent solution that makes the role reside within ICANN because everything about the gTLD currently exist within ICANN and it will not make any economic sense to move it out. So i find it strange that even if there is adequate accountability in place within ICANN, you will still insist on going the contracting route.
Adequate accountability within ICANN is a necessity before we move forward with any transition. However adequate accountability within ICANN is not sufficient -- we need adequate accountability within ICANN *directly related to performance of (or failure to properly perform) the IANA Functions*. This type of accountability is within the scope of this CWG (and not the Accountability CCWG), and so far, we have not seen any plan or proposal for such accountability that is adequate and responds to the concerns regarding separability, etc. I am not insisting on anything with regard to the contracting route. To the contrary, I remain open-minded. If we had an "internal to ICANN" plan that looked like it worked for all our purposes and didn't involve a contract, I would love to look at it and subject it to the same scrutiny that the current proposal has been subjected to. After that, who knows what would happen?
In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current *general* accountability issues, not because of them.
Negative...i don't agree that is the best approach and again i don't know how you already determine the proposal is efficient especially when we don't even have the details yet. There are definitely other options that allows moving of IANA from ICANN (if absolutely required) one of which does not even require any contracting/MOU/agreement (which can be implemented by the technical community)
We don't have all the details, but we have 10 pages of detail, enough to make a preliminary judgment. These other options -- what detail is there for these options? What framework is there for these options? Until there is at least a "strawman" level of detail, these other "options" aren't options at all -- they are just empty catchphrases.
Greg, please do not over-estimate multistakeholder settings especially when it has not been put to practice (as it is in this particular case). That 10page details has not touched critical aspect of MRT which is mainly its formation and charter plus the connection between MRT and contract co (it is not enough to call this a self company....the details is what is important)
Perhaps I have greater faith in the multistakeholder model than you do. Of course, we will not know how it works in practice until it is in practice -- but that's true of any plan. We are developing details and we will be subjecting the model to stress tests, so we should know as much anyone with a plan knows about how that plan will work in practice. Given that our goal is to transition NTIA's roles to the global multistakeholder community, we have to have some level of faith in the multistakeholder model. Otherwise, we should just tell the NTIA that transitioning their role to the global multistakeholder community can't be done. I agree that we need to flesh out how the MRT will be formed and what its charter might look like -- what are your suggestions for these aspects that would give you greater comfort? The connection between MRT and Contract Co. does need to be fleshed out as well -- I envision this as being written into Contract Co.'s bylaws. And by the way, I never called Contact Co. a "shelf company" -- it will be lightweight and limited but by definition, it can't be a shelf company. A shelf company (at least as this term is used in the U.S., refers to an inactive (and never activated) corporation -- it has no assets or liabilities, it has entered into no contracts or other obligations of any kind, it typically has a single "incorporator" rather than a full slate of officers and directors, and it has generic short-form documents rather than any kind of specially-drafted articles of incorporation or bylaws. Contract Co. should be as close as possible to a "shelf corporation".while still being able to perform its duties and meet the needs of the framework (which actually requires a fairly specifically-developed set of by-laws to keep it small and limited).
Without diminishing the importance of details -- the details are only important if the general framework looks promising and appropriate. I think we have that, and we have a good understanding of the principles that the details must meet to be acceptable to this group and the larger multistakeholder community. Now it's just a matter of following those principles and filling in the details -- not a small task, but not one to be overestimated either.
To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- *and will continue to lack *-- appropriate *general* accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend *IANA-specific* accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done.
Greg, you mentioned earlier that the ability to move IANA is required (although i don't necessarily agree but it doesn't hurt to have it) so if there are adequate mechanism within ICANN wouldn't all that will be required is for the mechanism to trigger movement of IANA from ICANN? Why then do we require all the MRT/CSC structure? I also don't agree that NTIA said we should replicate contracting processes (you may direct me to what part of NTIA announcement that implied such)
.
There is broad support for separability in the CWG. It's in our Principles (letter h) and it's in our Draft Proposal. You are entitled to disagree, but unless you can convince the CWG to change the Principles and the Proposal, any option we recommend must include separability.,
Well the principles is still in draft state (unless you mean it has just been finalised), in anycase, i have no problem with maintaining the current separability and this is something that can still be maintained internally by adding a few lines in the by-law
The Principles may be in draft but they have broad support, and they are heading toward finality. So it is certainly most appropriate to consider them heavily in examining any proposal. Right now, the current separability is entirely a creation of the IANA Contract -- I"m glad you have no problem maintaining the type of separability now embodied in the contract. However, you go on to say that this separability "can still be maintained internally by adding a few lines in the by-law." I find this assumption completely unsupported and thus completely lacking in credibility and value. Why do you think this is true? What would you put in the by-laws (by-laws aren't magic, they require words that work)? How would this work? What and who would trigger the separation? What would be the method for actually separating and finding a new Operator? Without answers to these questions, you are just running through the halls of the CWG with a jar of peanut butter, shouting "To Mars!" I'm not buying it -- not because I believe it's impossible -- but because I've been shown nothing on a functional level that makes me believe it is possible.
You say "if there are adequate mechanisms within ICANN...." What are these "adequate mechanisms"? Where would they come from? Remember, it's up to our CWG to come up with mechanisms relating to IANA accountability.
.....and this is the issue, we treat IANA accountability as if its rocket science, i think it may have been a mistake to have separated the CWG as its making it all look like the accountability this group is looking for is different from what the CWG-accountability is looking for.
It's not rocket science, and I don't believe we are treating it that way. It's just hard work. Whether having two CWGs is a mistake is beside the point. The accountability this group is looking for *IS* different from the accountability the CWG-Accountability is looking for. As I pointed out earlier in this thread:
*The key point I am making is that the "IANA specific aspect of the accountability" is within the scope of our CWG, and has been since the beginning of our work. As it says in our Charter: "Accountability for the administration of the IANA functions (i.e.,implementation and operational accountability), however, is properly within the scope of this working group." Conversely, the Charter of CCWG-Accountability says "**Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship."*
The CWG-Accountability is looking at the much broader question of enhancing ICANN's accountability to its stakeholders in all of its policy-making, implementing, operations, etc. -- everything *but* the accountability we are looking for.
Your "mechanism" is a complete mystery. If you want this group to consider an "internal to ICANN" mechanism that would move the right to perform the IANA Functions out of ICANN (and meet all the other requirements in this transition), you'll need to propose one.
The NTIA asks us to develop a proposal that transitions its stewardship to multi-stakeholder. It didn't say that the proposal has to be able to take the right to perform IANA function out of ICANN.
I agree that the NTIA did not say that our proposal has to be able to take the right to perform the IANA functions out of ICANN. However, the NTIA also did not preclude a proposal that takes the right to perform the IANA Functions out of ICANN. There was broad support within the CWG for a proposal that included the possibility and ability to take the right to perform the IANA Functions out of ICANN, and therefore that is in our proposal.
The way i interpreted it is that ICANN currently has a growing multi-stakeholder environment and this is the opportunity to transition the stewardship to that community so if this require updating ICANN-by law...so be it.
First, the NTIA did not refer to the "ICANN multistakeholder community," it referred to the "global multistakeholder community." These are not the same things. Nonetheless, I don't believe that this necessarily precludes an "internal-to-ICANN" solution, but it does mean that any such solution would have to bring stakeholders not present in ICANN into the oversight and accountability process. As for updating the ICANN by-laws, this not a magic wand. Without some idea of what this means (and I've asked a few questions above so that I and others can get some idea), saying "update the ICANN by-laws" is no more valuable than that NASA scientist saying "peanut butter."
Please note that I am not categorically precluding an "internal-to-ICANN" proposal. But right now, I don't see where that proposal is coming from, much less how it will satisfy even the most basic concerns of various stakeholders.
It is when we propose such and it gets rejected by ICANN board that we can justify that ICANN is not yet mature enough and a contracting route will suffice until there is significant indications of the organisation's maturity
First, we have to have a reasonably tangible and concrete "Internal-to-ICANN" proposal before the CWG, and that proposal has be further developed by and win the support of the CWG. We don't have even the first step of that , so your scenario above never happens. If it does happen, it's because the CWG decides that this "internal-to-ICANN" is the best proposal, not because we want to test the ICANN Board's "maturity", before putting forth the current draft proposal. I am confident we will put forth the proposal that gains the most support from the CWG and the stakeholders, regardless of whether the ICANN Board will like it. Right now, that seems likely to be a proposal growing out of the current draft proposal, since there is no other tangible proposal on the table. In any event, whether the ICANN Board would or even has the power to "reject" the proposal is open to question. As the ICG FAQ states:
*15. How will ICANN Board handle the final proposal submitted by the ICG?*
*The ICG expects that its proposal, having achieved consensus on the Coordination Group and within the Operational Communities, will be welcomed by the ICANN Board and dutifully transmitted to NTIA*
Finally, I never said that the NTIA said we should replicate contracting processes. What makes you say that?
Well you have just implied that in your statement below
No, I have not. I didn't even mention the NTIA. Please don't put words in my mouth.
However, unless we have another way to accomplish our objectives, the contract remains the most practical option.
I have "paraphrased" what i believe to be our objective above.
I'm not sure what you are referring to, or what your point is. Whatever your paraphrase is, our objectives are already well stated in the NTIA's announcement, the ICG RFP and our charter, so hopefully your paraphrase is consistent with those base document.
Regards,
Greg
Regards
Greg
Thanks
Regards!
Greg
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On Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos.
On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Seun:
I don't see how Strickling's remarks provide an "opportunity" for anything. I presume you are referring to the "spin" that some are putting on this speech as a "hint" that the timeline should be extended. I think that is a baseless assertion. The NTIA has indicated since March that they have the option to extend the agreement, so not only is this not "new news" it's no news. It's also not news that both the IANA transition and accountability "issues must be addressed before any transition takes place." Not only is this not news to the CWG or the community, it is in our proposal. So, I think the direct answer to your question is "No," and wishing won't make it so.
The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN's becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope.
I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need.
In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along.
Greg
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On Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos.
On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
All:
I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability:
I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression.
Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model.
The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA's job is to strengthen and promote that model.
In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes," the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation.
A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it "recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement."
Most recently, at the International Telecommunication Union's 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU's work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today.
This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues.
When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.
Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands.
We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is "conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions."
The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years.
ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place.
The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place.
I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN's becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community.
Getting the transition right will be a major project for NTIA in 2015.
The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str...
An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...>
Greg
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
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The key to understanding is humility - my view !
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The key to understanding is humility - my view !
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Dear Greg, thanks for your replies. Unfortunately, I do not have the time at the moment to respond to each and every point you have made. I'll just pick a couple of assertions you have made, though, which I personally disagree with. On 10/12/2014 20:53, Greg Shatan wrote:
GS: This is a pretty big "if." Unlike Contract Co., which would be built from the ground up to be a corporation with very limited purpose and goals and limitations upon its directors and officer, and thus lends itself to this "following orders" model, ICANN is an existing organization with a large board and officer group and many activities. At best, this type of organization does not lend itself to such a model. At worst, it's not even possible. But let's assume, solely for the sake of argument, that the ICANN bylaws can be modified in this fashion. I am assuming that the MRT will be "internal-to-ICANN" like the current SOs and ACs (and in contrast to the ICG). Is that correct? If so, how do you involve the global multistakeholder community (beyond ICANN) as required by the NTIA?
I would say that this has already been demonstrated in the making up of the ICG and the current CWG, both of which include non ICANN participants from the global multistakeholder community. Similarly, I would point out that a totally independent MRT that does not make use of ICANN's existing structures as a convenor would be missing a coordinated Governmental involvement. Indeed, only ICANN has the ability to make use of its members to relate back to the GAC and for the GAC to express points. A totally independent MRT would have individual governments speaking. Of course, individual governments were able to speak outside of ICANN at, say ITU meetings or at NetMundial - but they were not restricted to a handful of seats for the whole world. [...]
GS: I am not sure that this is impossible, but there are a number of very fundamental "ifs" and assumptions here that seem to make this speculative and uncertain in the extreme, with no virtue other than to be "internal-to-ICANN." I also don't see the advantages of this set-up, but perhaps I am missing something.
At this stage, I could use exactly the same wording about the current CWG first draft, replacing "other than to be 'internal-to-ICANN" with "other than to be separable from ICANN". Clearly we have some work ahead of us to make either proposal, or a mix, workable. Warmest regards, Olivier
From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Olivier MJ Crepin-Leblond I would say that this has already been demonstrated in the making up of the ICG and the current CWG, both of which include non ICANN participants from the global multistakeholder community. MM: Hello Olivier. Both the ICG and this CWG have been empowered by an external entity - the NTIA. It was the NTIA that kicked off the process by signaling its willingness to let go. It was NTIA that told ICANN to convene but not control the process. It was the NTIA that set the parameters and basic criteria a transition proposal had to meet. It is the NTIA, and the US government more broadly, that will ultimately determine whether the proposals we develop will be implemented. To look at these processes as outgrowths of processes internal to ICANN is to be fundamentally out of touch with what is going on here. As Jordan Carter pointed out in a message a few minutes ago, given the concessions we had to wring out of ICANN to make these processes as independent as they are, it is evident that these examples you hold up would have been very different had they been internal to ICANN. Similarly, I would point out that a totally independent MRT that does not make use of ICANN's existing structures as a convenor would be missing a coordinated Governmental involvement. Indeed, only ICANN has the ability to make use of its members to relate back to the GAC and for the GAC to express points. A totally independent MRT would have individual governments speaking. Of course, individual governments were able to speak outside of ICANN at, say ITU meetings or at NetMundial - but they were not restricted to a handful of seats for the whole world. MM: The MRT _will_ make use of ICANN's institutionalized representational structures. No one who has thought seriously about the composition of the MRT has proposed anything different from that. The GNSO SGs will be putting people on to the MRT, so will the ccNSO, so will the GAC, so will SSAC, so will ALAC. So will entities outside of ICANN. But it will be independent of ICANN legally, which as Greg explained is essential. MM: As a sideline, I am a bit disturbed by the special emphasis you are placing on governmental involvement. Outside of their jurisdiction, Governments' only claim to involvement in ICANN is as one of many voices in the policy development process. I do hope you, and all ALAC members, understand that the IANA functions contractor is not a policy making institution, nor is it supposed to be a vehicle for circumventing or vetoing policy. MM: When it comes to the IANA functions, we do not need governments "speaking," collectively or individually, about implementation. We need them in their role as ccTLD administrators, in which case they are just another IANA customer. Insofar as they are indirectly affected by the IANA functions, they are just another internet user stakeholder group - no different from or more important than noncommercial organizations or business users. There is no legitimate reason to afford governments a special collective voice in the MRT. Even in the terms of the Tunis Agenda, a document written by and for governments, IANA qualifies as "day to day technical and operational matters" and thus as something to be left to the private sector. At this stage, I could use exactly the same wording about the current CWG first draft, replacing "other than to be 'internal-to-ICANN" with "other than to be separable from ICANN". MM: The rationale for separability has been explained countless times. It is an accountability measure, a way of giving the community the most meaningful form of redress in case the functions are abused or not performed well. Moreover, the IANA functions have always been under a contractual relationship. The burden of proof is on those who would say IANA functions should be perpetually locked in to one corporation. And I completely agree with Greg on this question: we hear your discomfort with Contract Co but we have no idea what positive value you are seeking to advance by opposing it, other than to keep everything within ICANN. Clearly we have some work ahead of us to make either proposal, or a mix, workable. There will be and can be no mix; either ICANN owns IANA or it is contracted. I think there is work to be done on this plan, but have seen no serious challenges to its inherent workability. On the other hand, the workability of an internal to ICANN option is lying in a heap of rubble at the bottom of Greg's last message.
At 10/12/2014 07:12 PM, Milton L Mueller wrote:
From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Olivier MJ Crepin-Leblond
I would say that this has already been demonstrated in the making up of the ICG and the current CWG, both of which include non ICANN participants from the global multistakeholder community.
MM: Hello Olivier. Both the ICG and this CWG have been empowered by an external entity the NTIA. It was the NTIA that kicked off the process by signaling its willingness to let go. It was NTIA that told ICANN to convene but not control the process. It was the NTIA that set the parameters and basic criteria a transition proposal had to meet. It is the NTIA, and the US government more broadly, that will ultimately determine whether the proposals we develop will be implemented. To look at these processes as outgrowths of processes internal to ICANN is to be fundamentally out of touch with what is going on here. As Jordan Carter pointed out in a message a few minutes ago, given the concessions we had to wring out of ICANN to make these processes as independent as they are, it is evident that these examples you hold up would have been very different had they been internal to ICANN.
You seem to ignore the powerful draw of keeping IANA without the Contract Co. complexity, cost and potential for instability. Those are strong reason for ICANN to adapt.
Similarly, I would point out that a totally independent MRT that does not make use of ICANN's existing structures as a convenor would be missing a coordinated Governmental involvement. Indeed, only ICANN has the ability to make use of its members to relate back to the GAC and for the GAC to express points. A totally independent MRT would have individual governments speaking. Of course, individual governments were able to speak outside of ICANN at, say ITU meetings or at NetMundial - but they were not restricted to a handful of seats for the whole world.
MM: The MRT _will_ make use of ICANNs institutionalized representational structures. No one who has thought seriously about the composition of the MRT has proposed anything different from that. The GNSO SGs will be putting people on to the MRT, so will the ccNSO, so will the GAC, so will SSAC, so will ALAC. So will entities outside of ICANN. But it will be independent of ICANN legally, which as Greg explained is essential.
But we have not yet explored exactly who will be convening this body, or what exact structure it has. Greg has explained that for a body to have contractual terms which it will be compelled to honour (whether by contract or MoU), it has to have some formal status, but this undefined body will have a very complex relationship with Contract Co and I have seen no discussion about how that will happen.
MM: As a sideline, I am a bit disturbed by the special emphasis you are placing on governmental involvement. Outside of their jurisdiction, Governments only claim to involvement in ICANN is as one of many voices in the policy development process. I do hope you, and all ALAC members, understand that the IANA functions contractor is not a policy making institution, nor is it supposed to be a vehicle for circumventing or vetoing policy.
Are you saying that in this case, a MS body will not have any government involvement. I am more than a bit troubled that now "multistakeholder" means the multistakeholders that someone decide need to be involved, but not others. If that is indeed true, I would suggest that this be said VERY clearly and openly.
MM: When it comes to the IANA functions, we do not need governments speaking, collectively or individually, about implementation. We need them in their role as ccTLD administrators, in which case they are just another IANA customer. Insofar as they are indirectly affected by the IANA functions, they are just another internet user stakeholder group no different from or more important than noncommercial organizations or business users. There is no legitimate reason to afford governments a special collective voice in the MRT. Even in the terms of the Tunis Agenda, a document written by and for governments, IANA qualifies as day to day technical and operational matters and thus as something to be left to the private sector.
At this stage, I could use exactly the same wording about the current CWG first draft, replacing "other than to be 'internal-to-ICANN" with "other than to be separable from ICANN".
MM: The rationale for separability has been explained countless times. It is an accountability measure, a way of giving the community the most meaningful form of redress in case the functions are abused or not performed well. Moreover, the IANA functions have always been under a contractual relationship. The burden of proof is on those who would say IANA functions should be perpetually locked in to one corporation. And I completely agree with Greg on this question: we hear your discomfort with Contract Co but we have no idea what positive value you are seeking to advance by opposing it, other than to keep everything within ICANN.
Yes, separability *IS* a method of forcing accountability. But it is not the ONLY such method. Alan
Clearly we have some work ahead of us to make either proposal, or a mix, workable.
There will be and can be no mix; either ICANN owns IANA or it is contracted. I think there is work to be done on this plan, but have seen no serious challenges to its inherent workability. On the other hand, the workability of an internal to ICANN option is lying in a heap of rubble at the bottom of Gregs last message.
My further responses are inline. Greg On Wed, Dec 10, 2014 at 9:43 PM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
At 10/12/2014 07:12 PM, Milton L Mueller wrote:
*From:* cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <cwg-stewardship-bounces@icann.org>] *On Behalf Of *Olivier MJ Crepin-Leblond
I would say that this has already been demonstrated in the making up of the ICG and the current CWG, both of which include non ICANN participants from the global multistakeholder community.
MM: Hello Olivier. Both the ICG and this CWG have been empowered by an external entity – the NTIA. It was the NTIA that kicked off the process by signaling its willingness to let go. It was NTIA that told ICANN to convene but not control the process. It was the NTIA that set the parameters and basic criteria a transition proposal had to meet. It is the NTIA, and the US government more broadly, that will ultimately determine whether the proposals we develop will be implemented. To look at these processes as outgrowths of processes internal to ICANN is to be fundamentally out of touch with what is going on here. As Jordan Carter pointed out in a message a few minutes ago, given the concessions we had to wring out of ICANN to make these processes as independent as they are, it is evident that these examples you hold up would have been very different had they been internal to ICANN.
You seem to ignore the powerful draw of keeping IANA without the Contract Co. complexity, cost and potential for instability. Those are strong reason for ICANN to adapt.
GSS: Having spent some time thinking through the consequences of an "internal to ICANN" concept, I think it is just as complex, if not more so, than the CWG draft proposal. Further, I think that the "potential for instability" is the hallmark of effective accountability. If heads won't roll, then the chances that oversight and accountability will be effective drop dramatically.
Similarly, I would point out that a totally independent MRT that does not make use of ICANN's existing structures as a convenor would be missing a coordinated Governmental involvement. Indeed, only ICANN has the ability to make use of its members to relate back to the GAC and for the GAC to express points. A totally independent MRT would have individual governments speaking. Of course, individual governments were able to speak outside of ICANN at, say ITU meetings or at NetMundial - but they were not restricted to a handful of seats for the whole world.
MM: The MRT _*will*_ make use of ICANN’s institutionalized representational structures. No one who has thought seriously about the composition of the MRT has proposed anything different from that. The GNSO SGs will be putting people on to the MRT, so will the ccNSO, so will the GAC, so will SSAC, so will ALAC. So will entities outside of ICANN. But it will be independent of ICANN legally, which as Greg explained is essential.
But we have not yet explored exactly who will be convening this body, or what exact structure it has. Greg has explained that for a body to have contractual terms which it will be compelled to honour (whether by contract or MoU), it has to have some formal status, but this undefined body will have a very complex relationship with Contract Co and I have seen no discussion about how that will happen.
GSS: I'm not sure I understand your concern about a "convenor" for the MRT. It would be put in place as a necessary part of the IANA transition plan accepted by the NTIA and the global multistakeholder community (as represented by the ICG). I don't think it needs a formal "convenor" beyond that. As for the structure, we have discussed that it will be a broadly multistakeholder group, with members formally selected by and acting as representatives of their communities. Getting the details of this right is not a small task, but it is an implementation-level task. The policy-level concept is clear. Frankly, I don't think the relationship between the MRT and Contract Co. is all that complex. The fundamentals of that relationship can be clearly expressed in the MRT's charter and in the articles of incorporation and bylaws of Contract Co..
MM: As a sideline, I am a bit disturbed by the special emphasis you are placing on governmental involvement. Outside of their jurisdiction, Governments’ only claim to involvement in ICANN is as one of many voices in the policy development process. I do hope you, and all ALAC members, understand that the IANA functions contractor is not a policy making institution, nor is it supposed to be a vehicle for circumventing or vetoing policy.
Are you saying that in this case, a MS body will not have any government involvement.
I am more than a bit troubled that now "multistakeholder" means the multistakeholders that someone decide need to be involved, but not others.
If that is indeed true, I would suggest that this be said VERY clearly and openly.
GSS: I won't presume to speak for Milton, but reading all of this segment together, it's clear to me that he is not saying that the MRT will not have any government involvement. Rather, I believe he is saying that the GAC will have representatives on the MRT who will participate on an equal footing with other stakeholders. So, I think you are "troubled" here for no reason.
MM: When it comes to the IANA functions, we do not need governments “speaking,” collectively or individually, about implementation. We need them in their role as ccTLD administrators, in which case they are just another IANA customer. Insofar as they are indirectly affected by the IANA functions, they are just another internet user stakeholder group – no different from or more important than noncommercial organizations or business users. There is no legitimate reason to afford governments a special collective voice in the MRT. Even in the terms of the Tunis Agenda, a document written by and for governments, IANA qualifies as “day to day technical and operational matters” and thus as something to be left to the private sector.
At this stage, I could use exactly the same wording about the current CWG first draft, replacing "other than to be 'internal-to-ICANN" with "other than to be separable from ICANN".
MM: The rationale for separability has been explained countless times. It is an accountability measure, a way of giving the community the most meaningful form of redress in case the functions are abused or not performed well. Moreover, the IANA functions have always been under a contractual relationship. The burden of proof is on those who would say IANA functions should be perpetually locked in to one corporation. And I completely agree with Greg on this question: we hear your discomfort with Contract Co but we have no idea what positive value you are seeking to advance by opposing it, other than to keep everything within ICANN.
Yes, separability *IS* a method of forcing accountability. But it is not the ONLY such method.
GSS: It may not be the only method, but it is the ultimate method. Like other ultimate methods it should not be used lightly -- but it should be available. Greg
Alan
Clearly we have some work ahead of us to make either proposal, or a mix, workable.
There will be and can be no mix; either ICANN owns IANA or it is contracted. I think there is work to be done on this plan, but have seen no serious challenges to its inherent workability. On the other hand, the workability of an internal to ICANN option is lying in a heap of rubble at the bottom of Greg’s last message.
Hello all, my comments in-line, responding both to Milton's and Greg's points: On 11/12/2014 07:46, Greg Shatan wrote:
My further responses are inline.
Greg
On Wed, Dec 10, 2014 at 9:43 PM, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> wrote:
At 10/12/2014 07:12 PM, Milton L Mueller wrote:
*From:* cwg-stewardship-bounces@icann.org <mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org <mailto:cwg-stewardship-bounces@icann.org>] *On Behalf Of *Olivier MJ Crepin-Leblond
I would say that this has already been demonstrated in the making up of the ICG and the current CWG, both of which include non ICANN participants from the global multistakeholder community.
MM: Hello Olivier. Both the ICG and this CWG have been empowered by an external entity – the NTIA. It was the NTIA that kicked off the process by signaling its willingness to let go. It was NTIA that told ICANN to convene but not control the process. It was the NTIA that set the parameters and basic criteria a transition proposal had to meet. It is the NTIA, and the US government more broadly, that will ultimately determine whether the proposals we develop will be implemented. To look at these processes as outgrowths of processes internal to ICANN is to be fundamentally out of touch with what is going on here. As Jordan Carter pointed out in a message a few minutes ago, given the concessions we had to wring out of ICANN to make these processes as independent as they are, it is evident that these examples you hold up would have been very different had they been internal to ICANN.
You seem to ignore the powerful draw of keeping IANA without the Contract Co. complexity, cost and potential for instability. Those are strong reason for ICANN to adapt.
GSS: Having spent some time thinking through the consequences of an "internal to ICANN" concept, I think it is just as complex, if not more so, than the CWG draft proposal. Further, I think that the "potential for instability" is the hallmark of effective accountability. If heads won't roll, then the chances that oversight and accountability will be effective drop dramatically.
OCL: I am not sure that the threat of separation has any teeth if the Contract Co. is as much an empty shell as you make it out to be. If Contract Co. is instructed by the MRT to end the contract with the current IANA functions operator, ICANN, how will it be able to sustain any legal challenge from ICANN. You cannot enter litigation without a significant financial backing. In the case of a contract severance, there will be no IANA functions operator to fund the MRT or the Contract Co. defense. OCL: The ALAC's proposal rests on strong accountability mechanisms that would not let the current IANA functions operator to act contrary to the public interest, hence the emphasis that the Accountability CCWG needs to make some serious proposals - and hence the tragedy that the accountability process has started so late. We do not dispute the need for an MRT - hence if the MRT decides to allocate the contract to another entity than ICANN, bearing in mind the strong accountability mechanisms that will be in place at ICANN, processes will be in place to ensure an amicable transfer.
Similarly, I would point out that a totally independent MRT that does not make use of ICANN's existing structures as a convenor would be missing a coordinated Governmental involvement. Indeed, only ICANN has the ability to make use of its members to relate back to the GAC and for the GAC to express points. A totally independent MRT would have individual governments speaking. Of course, individual governments were able to speak outside of ICANN at, say ITU meetings or at NetMundial - but they were not restricted to a handful of seats for the whole world.
MM: The MRT _/will/_ make use of ICANN’s institutionalized representational structures. No one who has thought seriously about the composition of the MRT has proposed anything different from that. The GNSO SGs will be putting people on to the MRT, so will the ccNSO, so will the GAC, so will SSAC, so will ALAC. So will entities outside of ICANN. But it will be independent of ICANN legally, which as Greg explained is essential.
But we have not yet explored exactly who will be convening this body, or what exact structure it has. Greg has explained that for a body to have contractual terms which it will be compelled to honour (whether by contract or MoU), it has to have some formal status, but this undefined body will have a very complex relationship with Contract Co and I have seen no discussion about how that will happen.
GSS: I'm not sure I understand your concern about a "convenor" for the MRT. It would be put in place as a necessary part of the IANA transition plan accepted by the NTIA and the global multistakeholder community (as represented by the ICG). I don't think it needs a formal "convenor" beyond that. As for the structure, we have discussed that it will be a broadly multistakeholder group, with members formally selected by and acting as representatives of their communities. Getting the details of this right is not a small task, but it is an implementation-level task. The policy-level concept is clear. Frankly, I don't think the relationship between the MRT and Contract Co. is all that complex. The fundamentals of that relationship can be clearly expressed in the MRT's charter and in the articles of incorporation and bylaws of Contract Co..
OCL: The composition of the MRT is not just a mundane implementation detail. It is at the core of the balancing of stakeholder interests. We really need to get all the details right for this: - what the balance/composition of the stakeholders represented will be - how the selection of these stakeholder representatives will take place - whether there are term limits for these stakeholder representatives - what accountability mechanisms are there for these stakeholders to indeed act in the best interests of their stakeholder group - how they relate back to their stakeholder groups Without determining these details of this composition, I reiterate that we might be building a five legged sheep, a MRT that could go rogue; a disenfranchised MRT; a MRT that has no teeth nor means to defend itself. Also - what is the legal status of the MRT? Will it also be a not for profit company? If so, will it have directors? What internal accountability mechanisms will it have? These details will make all the difference to the workability of the scenario that's currently suggested by the CWG.
MM: As a sideline, I am a bit disturbed by the special emphasis you are placing on governmental involvement. Outside of their jurisdiction, Governments’ only claim to involvement in ICANN is as one of many voices in the policy development process. I do hope you, and all ALAC members, understand that the IANA functions contractor is not a policy making institution, nor is it supposed to be a vehicle for circumventing or vetoing policy.
Are you saying that in this case, a MS body will not have any government involvement.
I am more than a bit troubled that now "multistakeholder" means the multistakeholders that someone decide need to be involved, but not others.
If that is indeed true, I would suggest that this be said VERY clearly and openly.
GSS: I won't presume to speak for Milton, but reading all of this segment together, it's clear to me that he is not saying that the MRT will not have any government involvement. Rather, I believe he is saying that the GAC will have representatives on the MRT who will participate on an equal footing with other stakeholders. So, I think you are "troubled" here for no reason.
Could the GAC appoint representatives to entirely independent organisations/bodies and yet retain some kind of "liaison" link with these representatives?
MM: When it comes to the IANA functions, we do not need governments “speaking,” collectively or individually, about implementation. We need them in their role as ccTLD administrators, in which case they are just another IANA customer. Insofar as they are indirectly affected by the IANA functions, they are just another internet user stakeholder group – no different from or more important than noncommercial organizations or business users. There is no legitimate reason to afford governments a special collective voice in the MRT. Even in the terms of the Tunis Agenda, a document written by and for governments, IANA qualifies as “day to day technical and operational matters” and thus as something to be left to the private sector.
At this stage, I could use exactly the same wording about the current CWG first draft, replacing "other than to be 'internal-to-ICANN" with "other than to be separable from ICANN".
MM: The rationale for separability has been explained countless times. It is an accountability measure, a way of giving the community the most meaningful form of redress in case the functions are abused or not performed well. Moreover, the IANA functions have always been under a contractual relationship. The burden of proof is on those who would say IANA functions should be perpetually locked in to one corporation. And I completely agree with Greg on this question: we hear your discomfort with Contract Co but we have no idea what positive value you are seeking to advance by opposing it, other than to keep everything within ICANN.
Yes, separability *IS* a method of forcing accountability. But it is not the ONLY such method.
GSS: It may not be the only method, but it is the ultimate method. Like other ultimate methods it should not be used lightly -- but it should be available.
I agree. But it needs to be realistically workable. If separation means the MRT and the Contract Co. end up with no funding whatsoever then the separability on paper has no reality. Accountability mechanisms, on the other hand, have no weakness: if a decision is not made in-line with what's on paper, then mechanisms should be in place to automatically kick in. Kind regards, Olivier
My responses are inline. Greg On Thu, Dec 11, 2014 at 6:35 AM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:
Hello all,
my comments in-line, responding both to Milton's and Greg's points:
On 11/12/2014 07:46, Greg Shatan wrote:
My further responses are inline.
Greg
On Wed, Dec 10, 2014 at 9:43 PM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
At 10/12/2014 07:12 PM, Milton L Mueller wrote:
*From:* cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <cwg-stewardship-bounces@icann.org>] *On Behalf Of *Olivier MJ Crepin-Leblond
I would say that this has already been demonstrated in the making up of the ICG and the current CWG, both of which include non ICANN participants from the global multistakeholder community.
MM: Hello Olivier. Both the ICG and this CWG have been empowered by an external entity – the NTIA. It was the NTIA that kicked off the process by signaling its willingness to let go. It was NTIA that told ICANN to convene but not control the process. It was the NTIA that set the parameters and basic criteria a transition proposal had to meet. It is the NTIA, and the US government more broadly, that will ultimately determine whether the proposals we develop will be implemented. To look at these processes as outgrowths of processes internal to ICANN is to be fundamentally out of touch with what is going on here. As Jordan Carter pointed out in a message a few minutes ago, given the concessions we had to wring out of ICANN to make these processes as independent as they are, it is evident that these examples you hold up would have been very different had they been internal to ICANN.
You seem to ignore the powerful draw of keeping IANA without the Contract Co. complexity, cost and potential for instability. Those are strong reason for ICANN to adapt.
GSS: Having spent some time thinking through the consequences of an "internal to ICANN" concept, I think it is just as complex, if not more so, than the CWG draft proposal. Further, I think that the "potential for instability" is the hallmark of effective accountability. If heads won't roll, then the chances that oversight and accountability will be effective drop dramatically.
OCL: I am not sure that the threat of separation has any teeth if the Contract Co. is as much an empty shell as you make it out to be. If Contract Co. is instructed by the MRT to end the contract with the current IANA functions operator, ICANN, how will it be able to sustain any legal challenge from ICANN. You cannot enter litigation without a significant financial backing. In the case of a contract severance, there will be no IANA functions operator to fund the MRT or the Contract Co. defense.
GSS: As mentioned before, the IANA Functions Contract would provide that ICANN, as the counterparty to Contract Co., would indemnify, defend and hold harmless Contract Co. from all claims arising from the IANA Functions Contract, including any challenge by ICANN to Contract Co.'s termination of the agreement (at MRT's instruction). This type of indemnification is fairly common, and it is always set up so the indemnification survives the termination of the agreement. (In any event, ICANN would almost certainly be arguing that the agreement was not terminated, so that would be completely inconsistent with the idea that they are no longer the IANA Functions Operator (which is irrelevant to the survival of the indemnification obligation anyway.) We do need to work out funding matters for Contract Co. and MRT, but this is not one of them. There will be as much teeth here as there would be in any contract termination.
OCL: The ALAC's proposal rests on strong accountability mechanisms that would not let the current IANA functions operator to act contrary to the public interest, hence the emphasis that the Accountability CCWG needs to make some serious proposals - and hence the tragedy that the accountability process has started so late. We do not dispute the need for an MRT - hence if the MRT decides to allocate the contract to another entity than ICANN, bearing in mind the strong accountability mechanisms that will be in place at ICANN, processes will be in place to ensure an amicable transfer.
GSS: What are these "strong accountability mechanisms"? I will be very interested to see them; however, the glimpses I see here are somewhat troubling. First, with regard to actions/decisions/inaction by the IANA Functions Operator, I'm not sure that "contrary to the public interest" is the right standard in most cases that I can envision. Second, as the Charters clearly state, this CWG is responsible for dealing with accountability for IANA Functions, not the CCWG, so I am not sure why you are leaving it to the CCWG to make serious proposals. I also see issues with your statement "if the MRT decides to allocate the contract to another entity..." What contract? I though there was no contract in your concept. How then could a contract be allocated to a third party? And who would be the other party on the contract (aside from this third party)? This makes no sense. It appears to be a fundamental tenet of the ALAC concept that ICANN owns the right to perform the IANA Functions, rather than being a contractor, as in the CWG proposal. Again, you cite to some as-yet-uncreated (but somehow very strong) accountability mechanism that will force ICANN to be compliant and even amicable, and ask us to bear them in mind. I don't think we can bear something in mind whose basic nature is not even hinted at. Furthermore, I don't think you can fob off the responsibility of creating accountability mechanisms essential to IANA-related accountability on the CCWG-Accountability. While our group's proposal is interrelated and interdependent with the CCWG's proposal, it can't be incomplete.
Similarly, I would point out that a totally independent MRT that does not make use of ICANN's existing structures as a convenor would be missing a coordinated Governmental involvement. Indeed, only ICANN has the ability to make use of its members to relate back to the GAC and for the GAC to express points. A totally independent MRT would have individual governments speaking. Of course, individual governments were able to speak outside of ICANN at, say ITU meetings or at NetMundial - but they were not restricted to a handful of seats for the whole world.
MM: The MRT _*will*_ make use of ICANN’s institutionalized representational structures. No one who has thought seriously about the composition of the MRT has proposed anything different from that. The GNSO SGs will be putting people on to the MRT, so will the ccNSO, so will the GAC, so will SSAC, so will ALAC. So will entities outside of ICANN. But it will be independent of ICANN legally, which as Greg explained is essential.
But we have not yet explored exactly who will be convening this body, or what exact structure it has. Greg has explained that for a body to have contractual terms which it will be compelled to honour (whether by contract or MoU), it has to have some formal status, but this undefined body will have a very complex relationship with Contract Co and I have seen no discussion about how that will happen.
GSS: I'm not sure I understand your concern about a "convenor" for the MRT. It would be put in place as a necessary part of the IANA transition plan accepted by the NTIA and the global multistakeholder community (as represented by the ICG). I don't think it needs a formal "convenor" beyond that. As for the structure, we have discussed that it will be a broadly multistakeholder group, with members formally selected by and acting as representatives of their communities. Getting the details of this right is not a small task, but it is an implementation-level task. The policy-level concept is clear. Frankly, I don't think the relationship between the MRT and Contract Co. is all that complex. The fundamentals of that relationship can be clearly expressed in the MRT's charter and in the articles of incorporation and bylaws of Contract Co..
OCL: The composition of the MRT is not just a mundane implementation detail. It is at the core of the balancing of stakeholder interests. We really need to get all the details right for this: - what the balance/composition of the stakeholders represented will be - how the selection of these stakeholder representatives will take place - whether there are term limits for these stakeholder representatives - what accountability mechanisms are there for these stakeholders to indeed act in the best interests of their stakeholder group - how they relate back to their stakeholder groups
Without determining these details of this composition, I reiterate that we might be building a five legged sheep, a MRT that could go rogue; a disenfranchised MRT; a MRT that has no teeth nor means to defend itself.
Also - what is the legal status of the MRT? Will it also be a not for profit company? If so, will it have directors? What internal accountability mechanisms will it have? These details will make all the difference to the workability of the scenario that's currently suggested by the CWG.
GSS: I never said that these details were "mundane." As we all know, implementation details are often far from "mundane." I agree that the multistakeholder group in any IANA transition proposal must be done right. In this way, the CWG proposal and the ALAC proposal do not differ. I classify these as implementation by analogy to the policy vs. implementation concept -- we have already set forth the "policy" that the group will be broadly multistakeholder, with formally selected representatives (according to each community's methods for such selections) that must be answerable to their communities. The next step is filling in the details that "implement" this "policy." (For the sake of clarity, this "implementation" is our job, not staff's; the "implementation" analogy only goes so far). I think this essentially answers 3 of your questions (selection, accountability to the community and "relation-back"). The other two (balance/composition and term limits) are important (especially the first) and we will be discussing this directly next week. Unless, our group does its job poorly in connecting these dots, we should not have any serious risk of creating any of the ungodly creatures you conjure up. I think it's been fairly clear that MRT is not a not-for-profit company (or legal entity of any type), and thus would not have directors, but I'm happy to clarify that here. It's a one-level organization (not excluding their right to form subgroups and committees, as we have done here).
MM: As a sideline, I am a bit disturbed by the special emphasis you are placing on governmental involvement. Outside of their jurisdiction, Governments’ only claim to involvement in ICANN is as one of many voices in the policy development process. I do hope you, and all ALAC members, understand that the IANA functions contractor is not a policy making institution, nor is it supposed to be a vehicle for circumventing or vetoing policy.
Are you saying that in this case, a MS body will not have any government involvement.
I am more than a bit troubled that now "multistakeholder" means the multistakeholders that someone decide need to be involved, but not others.
If that is indeed true, I would suggest that this be said VERY clearly and openly.
GSS: I won't presume to speak for Milton, but reading all of this segment together, it's clear to me that he is not saying that the MRT will not have any government involvement. Rather, I believe he is saying that the GAC will have representatives on the MRT who will participate on an equal footing with other stakeholders. So, I think you are "troubled" here for no reason.
Could the GAC appoint representatives to entirely independent organisations/bodies and yet retain some kind of "liaison" link with these representatives?
GSS: I don't see why not -- they have done it with the ICG. As Alan Greenberg pointed out earlier in this thread, no one has claimed that the ICG is a part of ICANN and the ICG has taken a firm stand on this matter (also re-stated earlier in this thread).
MM: When it comes to the IANA functions, we do not need governments
“speaking,” collectively or individually, about implementation. We need them in their role as ccTLD administrators, in which case they are just another IANA customer. Insofar as they are indirectly affected by the IANA functions, they are just another internet user stakeholder group – no different from or more important than noncommercial organizations or business users. There is no legitimate reason to afford governments a special collective voice in the MRT. Even in the terms of the Tunis Agenda, a document written by and for governments, IANA qualifies as “day to day technical and operational matters” and thus as something to be left to the private sector.
At this stage, I could use exactly the same wording about the current CWG first draft, replacing "other than to be 'internal-to-ICANN" with "other than to be separable from ICANN".
MM: The rationale for separability has been explained countless times. It is an accountability measure, a way of giving the community the most meaningful form of redress in case the functions are abused or not performed well. Moreover, the IANA functions have always been under a contractual relationship. The burden of proof is on those who would say IANA functions should be perpetually locked in to one corporation. And I completely agree with Greg on this question: we hear your discomfort with Contract Co but we have no idea what positive value you are seeking to advance by opposing it, other than to keep everything within ICANN.
Yes, separability *IS* a method of forcing accountability. But it is not the ONLY such method.
GSS: It may not be the only method, but it is the ultimate method. Like other ultimate methods it should not be used lightly -- but it should be available.
I agree. But it needs to be realistically workable. If separation means the MRT and the Contract Co. end up with no funding whatsoever then the separability on paper has no reality.
GSS: I don't see why you presume this. That would be rather silly. Though we have had some discussions of funding, I agree that we need to flesh this out in the coming days. I look forward to your assistance in doing so.
Accountability mechanisms, on the other hand, have no weakness: if a decision is not made in-line with what's on paper, then mechanisms should be in place to automatically kick in.
GSS: This is quite the dramatic statement, but I fundamentally disagree with it. Of course accountability mechanisms have weaknesses, and these weaknesses are fact-specific depending on the accountability mechanism at issue. Without knowing what accountability mechanism are being proposed here, your statement is unfortunately not only wrong, but baseless. Accountability mechanisms come in many flavors. Contracts are accountability mechanisms. Contract Co. itself is an accountability mechanism. Separability is an accountability mechanism. Furthermore, accountability mechanisms in governance can't be "automatic," like an electric fence or a booby trap. They will need to be initiated. I feel like you are not really proposing accountability mechanisms -- it actually sounds like you are proposing a *deus ex machina*. Greg
Kind regards,
Olivier
Dear Greg, thanks for following-up on my questions/comments. See below (a much shortened track): On 12/12/2014 05:50, Greg Shatan wrote:
I think it's been fairly clear that MRT is not a not-for-profit company (or legal entity of any type), and thus would not have directors, but I'm happy to clarify that here. It's a one-level organization (not excluding their right to form subgroups and committees, as we have done here).
How does the proposed "Contract Co." receive binding instructions from MRT? How does it issue binding resolutions to the IANA Functions Operator? Kind regards, Olivier
I just want to add a few points to Milton's response, since he (thankfully) said much of what I would have said (and more besides). On Wed, Dec 10, 2014 at 7:12 PM, Milton L Mueller <mueller@syr.edu> wrote:
*From:* cwg-stewardship-bounces@icann.org [mailto: cwg-stewardship-bounces@icann.org] *On Behalf Of *Olivier MJ Crepin-Leblond
I would say that this has already been demonstrated in the making up of the ICG and the current CWG, both of which include non ICANN participants from the global multistakeholder community.
MM: Hello Olivier. Both the ICG and this CWG have been empowered by an external entity – the NTIA. It was the NTIA that kicked off the process by signaling its willingness to let go. It was NTIA that told ICANN to convene but not control the process. It was the NTIA that set the parameters and basic criteria a transition proposal had to meet. It is the NTIA, and the US government more broadly, that will ultimately determine whether the proposals we develop will be implemented. To look at these processes as outgrowths of processes internal to ICANN is to be fundamentally out of touch with what is going on here. As Jordan Carter pointed out in a message a few minutes ago, given the concessions we had to wring out of ICANN to make these processes as independent as they are, it is evident that these examples you hold up would have been very different had they been internal to ICANN.
GSS: The ICG is definitely not "internal-to-ICANN." Here is #3 of the ICG's FAQs: Is the ICG part of ICANN? No. The ICG is an independent coordination group that has been established as a result of a broad community consultation and in response to the NTIA's announcement. The ICG is conducting its work in an open, transparent and independent manner. The ICG will be providing its report to the community broadly. Moreover, the ICG has issued a Request for Proposal (RFP) to select a suitable neutral and independent contractor to perform its secretariat function <https://www.icann.org/news/announcement-2-2014-09-09-en>. The role of the secretariat is strictly limited to the functions that support the ICG, and will report exclusively to the ICG, its Chair or Vice-Chair(s).
Similarly, I would point out that a totally independent MRT that does not make use of ICANN's existing structures as a convenor would be missing a coordinated Governmental involvement. Indeed, only ICANN has the ability to make use of its members to relate back to the GAC and for the GAC to express points. A totally independent MRT would have individual governments speaking. Of course, individual governments were able to speak outside of ICANN at, say ITU meetings or at NetMundial - but they were not restricted to a handful of seats for the whole world.
MM: The MRT _*will*_ make use of ICANN’s institutionalized representational structures. No one who has thought seriously about the composition of the MRT has proposed anything different from that. The GNSO SGs will be putting people on to the MRT, so will the ccNSO, so will the GAC, so will SSAC, so will ALAC. So will entities outside of ICANN. But it will be independent of ICANN legally, which as Greg explained is essential.
GSS: As stated above, the ICG is not part of ICANN, yet it makes use of ICANN's structures (including the GAC), so your statement doesn't hold water. The MRT can be set up in a similar fashion.
MM: As a sideline, I am a bit disturbed by the special emphasis you are placing on governmental involvement. Outside of their jurisdiction, Governments’ only claim to involvement in ICANN is as one of many voices in the policy development process. I do hope you, and all ALAC members, understand that the IANA functions contractor is not a policy making institution, nor is it supposed to be a vehicle for circumventing or vetoing policy.
MM: When it comes to the IANA functions, we do not need governments “speaking,” collectively or individually, about implementation. We need them in their role as ccTLD administrators, in which case they are just another IANA customer. Insofar as they are indirectly affected by the IANA functions, they are just another internet user stakeholder group – no different from or more important than noncommercial organizations or business users. There is no legitimate reason to afford governments a special collective voice in the MRT. Even in the terms of the Tunis Agenda, a document written by and for governments, IANA qualifies as “day to day technical and operational matters” and thus as something to be left to the private sector.
At this stage, I could use exactly the same wording about the current CWG first draft, replacing "other than to be 'internal-to-ICANN" with "other than to be separable from ICANN".
GSS: This is a false equivalency. You are comparing a five-line three-sentence paragraph -- about which nothing is known other than those few words -- with an entire section in the proposal which has been worked out and debated and amplified and clarified through hours of meetings and phone calls and hundreds of emails.
MM: The rationale for separability has been explained countless times. It is an accountability measure, a way of giving the community the most meaningful form of redress in case the functions are abused or not performed well. Moreover, the IANA functions have always been under a contractual relationship. The burden of proof is on those who would say IANA functions should be perpetually locked in to one corporation. And I completely agree with Greg on this question: we hear your discomfort with Contract Co but we have no idea what positive value you are seeking to advance by opposing it, other than to keep everything within ICANN.
Clearly we have some work ahead of us to make either proposal, or a mix, workable.
There will be and can be no mix; either ICANN owns IANA or it is contracted. I think there is work to be done on this plan, but have seen no serious challenges to its inherent workability. On the other hand, the workability of an internal to ICANN option is lying in a heap of rubble at the bottom of Greg’s last message.
On 11/12/2014 06:28, Greg Shatan wrote:
I just want to add a few points to Milton's response, since he (thankfully) said much of what I would have said (and more besides).
On Wed, Dec 10, 2014 at 7:12 PM, Milton L Mueller <mueller@syr.edu <mailto:mueller@syr.edu>> wrote:
*From:*cwg-stewardship-bounces@icann.org <mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org <mailto:cwg-stewardship-bounces@icann.org>] *On Behalf Of *Olivier MJ Crepin-Leblond
I would say that this has already been demonstrated in the making up of the ICG and the current CWG, both of which include non ICANN participants from the global multistakeholder community.
MM: Hello Olivier. Both the ICG and this CWG have been empowered by an external entity – the NTIA. It was the NTIA that kicked off the process by signaling its willingness to let go. It was NTIA that told ICANN to convene but not control the process. It was the NTIA that set the parameters and basic criteria a transition proposal had to meet. It is the NTIA, and the US government more broadly, that will ultimately determine whether the proposals we develop will be implemented. To look at these processes as outgrowths of processes internal to ICANN is to be fundamentally out of touch with what is going on here. As Jordan Carter pointed out in a message a few minutes ago, given the concessions we had to wring out of ICANN to make these processes as independent as they are, it is evident that these examples you hold up would have been very different had they been internal to ICANN.
GSS: The ICG is definitely not "internal-to-ICANN." Here is #3 of the ICG's FAQs:
Is the ICG part of ICANN? No. The ICG is an independent coordination group that has been established as a result of a broad community consultation and in response to the NTIA's announcement. The ICG is conducting its work in an open, transparent and independent manner. The ICG will be providing its report to the community broadly. Moreover, the ICG has issued a Request for Proposal (RFP) to select a suitable neutral and independent contractor to perform its secretariat function <https://www.icann.org/news/announcement-2-2014-09-09-en>. The role of the secretariat is strictly limited to the functions that support the ICG, and will report exclusively to the ICG, its Chair or Vice-Chair(s).
Similarly, I would point out that a totally independent MRT that does not make use of ICANN's existing structures as a convenor would be missing a coordinated Governmental involvement. Indeed, only ICANN has the ability to make use of its members to relate back to the GAC and for the GAC to express points. A totally independent MRT would have individual governments speaking. Of course, individual governments were able to speak outside of ICANN at, say ITU meetings or at NetMundial - but they were not restricted to a handful of seats for the whole world.
MM: The MRT _/will/_ make use of ICANN’s institutionalized representational structures. No one who has thought seriously about the composition of the MRT has proposed anything different from that. The GNSO SGs will be putting people on to the MRT, so will the ccNSO, so will the GAC, so will SSAC, so will ALAC. So will entities outside of ICANN. But it will be independent of ICANN legally, which as Greg explained is essential.
GSS: As stated above, the ICG is not part of ICANN, yet it makes use of ICANN's structures (including the GAC), so your statement doesn't hold water. The MRT can be set up in a similar fashion.
MM: As a sideline, I am a bit disturbed by the special emphasis you are placing on governmental involvement. Outside of their jurisdiction, Governments’ only claim to involvement in ICANN is as one of many voices in the policy development process. I do hope you, and all ALAC members, understand that the IANA functions contractor is not a policy making institution, nor is it supposed to be a vehicle for circumventing or vetoing policy.
MM: When it comes to the IANA functions, we do not need governments “speaking,” collectively or individually, about implementation. We need them in their role as ccTLD administrators, in which case they are just another IANA customer. Insofar as they are indirectly affected by the IANA functions, they are just another internet user stakeholder group – no different from or more important than noncommercial organizations or business users. There is no legitimate reason to afford governments a special collective voice in the MRT. Even in the terms of the Tunis Agenda, a document written by and for governments, IANA qualifies as “day to day technical and operational matters” and thus as something to be left to the private sector.
OCL: The NTIA announcement of 14 March 2014 mentions the "intent to transition key Internet domain name functions to the global multistakeholder community". There is no mention of the intent to transition the functions to only the IANA's direct customers.
At this stage, I could use exactly the same wording about the current CWG first draft, replacing "other than to be 'internal-to-ICANN" with "other than to be separable from ICANN".
GSS: This is a false equivalency. You are comparing a five-line three-sentence paragraph -- about which nothing is known other than those few words -- with an entire section in the proposal which has been worked out and debated and amplified and clarified through hours of meetings and phone calls and hundreds of emails.
OCL: my point is that in my opinion the challenges in working out the details of the CWG's first draft and making them implementable are equally as complex as developing a solution that involves accountability mechanisms. Another CCWG is specifically tasked with this. I am repeatedly surprised that there is more faith in the CWG's proposal which introduces a multitude of unknown unknowns as far as accountability is concerned, than in a process that involves a strengthening of ICANN's accountability. Is there really so much distrust about ICANN? Also - please do not equate this paragraph to a defense of ICANN on my part. I have serious concerns about ICANN's accountability. I think a number of things need to be fixed. But having seen how new entities get set-up with all of the best intentions in the world and then go rogue after a few years, I would be happier with a solution that fixes an animal that we already know inside out. Warmest regards, Olivier
Responses inline below. Greg *Gregory S. Shatan **|* *Abelman Frayne & Schwab* *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/>* On Thu, Dec 11, 2014 at 6:54 AM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:
On 11/12/2014 06:28, Greg Shatan wrote:
I just want to add a few points to Milton's response, since he (thankfully) said much of what I would have said (and more besides).
On Wed, Dec 10, 2014 at 7:12 PM, Milton L Mueller <mueller@syr.edu> wrote:
*From:* cwg-stewardship-bounces@icann.org [mailto: cwg-stewardship-bounces@icann.org] *On Behalf Of *Olivier MJ Crepin-Leblond
I would say that this has already been demonstrated in the making up of the ICG and the current CWG, both of which include non ICANN participants from the global multistakeholder community.
MM: Hello Olivier. Both the ICG and this CWG have been empowered by an external entity – the NTIA. It was the NTIA that kicked off the process by signaling its willingness to let go. It was NTIA that told ICANN to convene but not control the process. It was the NTIA that set the parameters and basic criteria a transition proposal had to meet. It is the NTIA, and the US government more broadly, that will ultimately determine whether the proposals we develop will be implemented. To look at these processes as outgrowths of processes internal to ICANN is to be fundamentally out of touch with what is going on here. As Jordan Carter pointed out in a message a few minutes ago, given the concessions we had to wring out of ICANN to make these processes as independent as they are, it is evident that these examples you hold up would have been very different had they been internal to ICANN.
GSS: The ICG is definitely not "internal-to-ICANN." Here is #3 of the ICG's FAQs:
Is the ICG part of ICANN? No. The ICG is an independent coordination group that has been established as a result of a broad community consultation and in response to the NTIA's announcement. The ICG is conducting its work in an open, transparent and independent manner. The ICG will be providing its report to the community broadly. Moreover, the ICG has issued a Request for Proposal (RFP) to select a suitable neutral and independent contractor to perform its secretariat function <https://www.icann.org/news/announcement-2-2014-09-09-en>. The role of the secretariat is strictly limited to the functions that support the ICG, and will report exclusively to the ICG, its Chair or Vice-Chair(s).
Similarly, I would point out that a totally independent MRT that does not make use of ICANN's existing structures as a convenor would be missing a coordinated Governmental involvement. Indeed, only ICANN has the ability to make use of its members to relate back to the GAC and for the GAC to express points. A totally independent MRT would have individual governments speaking. Of course, individual governments were able to speak outside of ICANN at, say ITU meetings or at NetMundial - but they were not restricted to a handful of seats for the whole world.
MM: The MRT _*will*_ make use of ICANN’s institutionalized representational structures. No one who has thought seriously about the composition of the MRT has proposed anything different from that. The GNSO SGs will be putting people on to the MRT, so will the ccNSO, so will the GAC, so will SSAC, so will ALAC. So will entities outside of ICANN. But it will be independent of ICANN legally, which as Greg explained is essential.
GSS: As stated above, the ICG is not part of ICANN, yet it makes use of ICANN's structures (including the GAC), so your statement doesn't hold water. The MRT can be set up in a similar fashion.
MM: As a sideline, I am a bit disturbed by the special emphasis you are placing on governmental involvement. Outside of their jurisdiction, Governments’ only claim to involvement in ICANN is as one of many voices in the policy development process. I do hope you, and all ALAC members, understand that the IANA functions contractor is not a policy making institution, nor is it supposed to be a vehicle for circumventing or vetoing policy.
MM: When it comes to the IANA functions, we do not need governments “speaking,” collectively or individually, about implementation. We need them in their role as ccTLD administrators, in which case they are just another IANA customer. Insofar as they are indirectly affected by the IANA functions, they are just another internet user stakeholder group – no different from or more important than noncommercial organizations or business users. There is no legitimate reason to afford governments a special collective voice in the MRT. Even in the terms of the Tunis Agenda, a document written by and for governments, IANA qualifies as “day to day technical and operational matters” and thus as something to be left to the private sector.
OCL: The NTIA announcement of 14 March 2014 mentions the "intent to transition key Internet domain name functions to the global multistakeholder community". There is no mention of the intent to transition the functions to only the IANA's direct customers.
GS: I'm not sure what you ar responding to here. Neither Milton nor I nor the CWG proposal has stated an intent to transition only to IANA's direct customers.
At this stage, I could use exactly the same wording about the
current CWG first draft, replacing "other than to be 'internal-to-ICANN" with "other than to be separable from ICANN".
GSS: This is a false equivalency. You are comparing a five-line three-sentence paragraph -- about which nothing is known other than those few words -- with an entire section in the proposal which has been worked out and debated and amplified and clarified through hours of meetings and phone calls and hundreds of emails.
OCL: my point is that in my opinion the challenges in working out the details of the CWG's first draft and making them implementable are equally as complex as developing a solution that involves accountability mechanisms.
GS: I disagree. In any event, we are considerably further along in working out the details of the CWG proposal than we (or the CCWG-Accountability, since you seem to think accountability mechanisms are not our job) are on a solution that relies on creating or reconstructing internal-to-ICANN accountability mechanisms.
Another CCWG is specifically tasked with this.
GS: I disagree with this as well. Accountability mechanisms for performance or lack of performance of the IANA Functions are our task, not the CCWG-Accountability. This is clear from the Charters, as I demonstrated earlier as well. Following your logic, we can create something that is utterly dependent on the CCWG-Accountability to work out all of the accountability mechanisms needed to make our proposal workable, and that is utterly unworkable without the CCWG's *deus ex machina *descending onto the stage and taming ICANN into an amiable creature. I think that would be a complete abrogation of our duties.
I am repeatedly surprised that there is more faith in the CWG's proposal which introduces a multitude of unknown unknowns as far as accountability is concerned, than in a process that involves a strengthening of ICANN's accountability.
GS: I would not classify the solutions in the CWG proposal as "unknown unknowns"; at worst, they are known unknowns -- we know what the blanks are, we just need to finish filling them in. The major framework of the CWG proposal is a "known known" using existing building blocks like contracts and multistakeholder groups. It's really not very exotic. Indeed, when our proposal first came out, we were accused of being "unimaginative" and "status-quoist" in the blogosphere and twitterverse.
Is there really so much distrust about ICANN?
GS: I think others have answered this in this and other threads. I will take a different tack. Whether there is a great deal of distrust in ICANN today or not, we need to look down the line and think about worst case scenarios and risk mitigation. Using a valid, enforceable contract and an independent third party provides a very traditional way of binding a corporation, and isolates the accountability mechanisms from the target of those mechanisms. By contrast, the ALAC concept puts the accountability mechanism inside the target. If you had a wild animal in a cage, would you put the tranquilizer gun inside the cage, or outside of it?
Also - please do not equate this paragraph to a defense of ICANN on my part. I have serious concerns about ICANN's accountability. I think a number of things need to be fixed. But having seen how new entities get set-up with all of the best intentions in the world and then go rogue after a few years, I would be happier with a solution that fixes an animal that we already know inside out.
GS: I am also hopeful of a broad solution to enhancing ICANN's accountability that fixes the animal, and I look forward to the CCWG's work on that score. But it is not our job to fix all of ICANN. We have a different task and we need to put forward a proposal that meets the task. As for the rogue entity (or entities) started with the best of intentions that you have seen: can you give us some more concrete detail and examples of these? I am sure that we could learn something from these past problems so that we can avoid their mistakes and weaknesses. It would be good to have some real examples to deal with. Best regards, Greg
Warmest regards,
Olivier
On 12/12/2014 06:26, Greg Shatan wrote:
As for the rogue entity (or entities) started with the best of intentions that you have seen: can you give us some more concrete detail and examples of these? I am sure that we could learn something from these past problems so that we can avoid their mistakes and weaknesses. It would be good to have some real examples to deal with.
ICANN Version 1: http://www.icannwatch.org/archive/mueller_icann_and_internet_governance.pdf And another problem encountered by ICANN Version 1: http://personal.law.miami.edu/~froomkin/boardsquat.htm and since all things come in three, have a look at that: http://people.apache.org/~jim/NewArchitect/newarch/2002/06/new1020218289998/... I feel a lot more nervous starting a Co./Org. Version 1 than one that's already gone through a few iterations & have left juvenile age. Kind regards, Olivier
Hi Greg, I have been off the internet for a while. I see this thread has become a long one. I just like to mention a few things: - The current CWG proposal was developed by this entire group and with access to resources including staff. It started as an idea and was developed with a mindset of us looking at a possible route. It is not appropriate for us not to spend similar resources to fashion out details of us trying another route. - I agree that the cwg-accountability may be looking at broader level of accountability but my point is if those IANA specific ones are identified and implemented, wouldn't that remove the need for a contract co and further reduce the over reaching power assigned to the MRT? - You speak about MRT meeting the NTIA requirement of global multistakeholder. I wonder how you determined that when the details of it's composition is yet to be released/ascertained. - I think we should have known by now that IANA function operation is at full automation so when we threaten movement of IANA from ICANN is it because of the service delivery or because of board interpretation/implementation of policy. The former is most likely not going checkmate anything because that aspect is fully and well operated, the later is the major aspect and you don't fix that from outside, you fix that from inside. - The earlier we view ICANN as home for gTLD the better we "think-of" and go through a route that builds the organisation with mechanism that makes it sustainable. We are here talking about taking IANA away, but ICANN will still be policy source and it will still be the same experience and if ICANN is not, what's the assurance that the new body will not act the same way. Regards sent from Google nexus 4 kindly excuse brevity and typos. On 8 Dec 2014 19:49, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
My replies are inline.
Greg
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On Mon, Dec 8, 2014 at 5:06 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On Mon, Dec 8, 2014 at 6:18 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
My responses are inline below.
In fact, it's up to us to identify the *IANA-specific* aspects of
accountability and then determine how the IANA Functions Operator should be held accountable for failures to implement policy and for failures of operational excellence. That is our "accountability track." And this has been true since we started.
If i may ask, if this group is able to put in place mechanisms that ensure the function operator is indeed accountable...why/what then is the need for the MRT and CSC?
The MRT and CSC are integral parts of our accountability mechanisms, along with the contract (and the ability to terminate it) and the independent Appeals Panel. What do you think our accountability mechanisms are?
Greg i think you did not get my point. My point is that the major accountability requirement that is IANA specific is that which is related to ensuring implementation based on existing policies. So if this group (or the cwg on accountability) is able to fashion out an internal mechanism that guarantees that aspect. Why will we still need MRT?.
This group has always been "able," *as a matter of scope*, to fashion an internal-to-ICANN accountability mechanism. Similarly, NASA, as a matter of scope, has always been "able" to fly a rocket to Mars fueled by a jar of peanut butter. So, what is stopping us and NASA from accomplishing these objectives? At the very least, the lack of any sort of plan or proposal showing *how* one would accomplish this. So it is not a question of scope, it's a question of putting together a plan. Is this group "able" *as a practical matter* to put together a plan for an internal-to-ICANN accountability mechanism that meets the requirements and concerns of the NTIA and various stakeholders? So far, the answer seems to be "no." I'm open minded -- if someone puts forth a plan with a reasonable level of detail (e.g., strawman or draft proposal level of detail) and everyone probes it for flaws and asks for further details, which then get filled in, and if that plan, after making it through the gantlet of this group, looks viable, that would be a good thing. (And, of course, that plan might not include an MRT, or it would include a different sort of multistakeholder body.) However, it hasn't happened and I don't see any real movement toward it, and the time for such action is growing short. Unless there is some realistic movement forward on an "internal-to-ICANN" plan, the continued reference to the "internal-to-ICANN" concept has no shape and thus no value. Continuing to advocate for "internal-to-ICANN" is very much like a NASA scientist wandering the halls of NASA with a jar of peanut butter, shouting "To Mars!!" No matter how much that scientist critiques other plans for going to Mars, his "Peanut Butter Plan" will never be credible without more from him.
I may not have any issue if MRT's role does not include RFP and if the Contract Co is just signing of an MOU that is not term based, because at that point, the MRT will just be something similar to the cwg and will become very much less attractive (except that its waste of resources).
It seems you have an essential issue with separability -- you don't want a term and you don't want an RFP. So, essentially you want to give ICANN the right in perpetuity to be the IANA Functions Operator, subject perhaps to some completely undefined method for some completely undefined group to remove that right due to a completely undefined failure to meet completely undefined criteria. Well, I can't give the "undefined" any weight whatsoever.
I'm sorry you think that multistakeholder oversight of the IANA Functions is a "waste of resources." The NTIA and most of the people on this list (myself included) seem to think it is very valuable -- indeed, for the NTIA it is the essence of the transition. How do you propose to transfer the NTIA's functions to the global multistakeholder community without any sort of multistakeholder group?
This also will not in anyway reduce the possibility of moving IANA if need be.
I don't see how you can say this. You want to eliminate the only possibilities this CWG has defined to move IANA if need be. You propose no method or group or criteria by which moving IANA if need be could be achieved. Until you provide some alternative, you have reduced -- effectively to zero -- the possibility of moving IANA.
You are perhaps quite experienced in the gTLD space than i am, and realistically speaking i think the gTLD are the ones who should seek a permanent solution that makes the role reside within ICANN because everything about the gTLD currently exist within ICANN and it will not make any economic sense to move it out. So i find it strange that even if there is adequate accountability in place within ICANN, you will still insist on going the contracting route.
Adequate accountability within ICANN is a necessity before we move forward with any transition. However adequate accountability within ICANN is not sufficient -- we need adequate accountability within ICANN *directly related to performance of (or failure to properly perform) the IANA Functions*. This type of accountability is within the scope of this CWG (and not the Accountability CCWG), and so far, we have not seen any plan or proposal for such accountability that is adequate and responds to the concerns regarding separability, etc. I am not insisting on anything with regard to the contracting route. To the contrary, I remain open-minded. If we had an "internal to ICANN" plan that looked like it worked for all our purposes and didn't involve a contract, I would love to look at it and subject it to the same scrutiny that the current proposal has been subjected to. After that, who knows what would happen?
In my view (and the view of many others in this group), the current CWG proposal was (and is) seen as the most efficient, effective, and independent method for achieving this result, and also the best method for replacing NTIA's other pre-transition roles as well. I believe we arrived at this in spite of ICANN's current *general* accountability issues, not because of them.
Negative...i don't agree that is the best approach and again i don't know how you already determine the proposal is efficient especially when we don't even have the details yet. There are definitely other options that allows moving of IANA from ICANN (if absolutely required) one of which does not even require any contracting/MOU/agreement (which can be implemented by the technical community)
We don't have all the details, but we have 10 pages of detail, enough to make a preliminary judgment. These other options -- what detail is there for these options? What framework is there for these options? Until there is at least a "strawman" level of detail, these other "options" aren't options at all -- they are just empty catchphrases.
Greg, please do not over-estimate multistakeholder settings especially when it has not been put to practice (as it is in this particular case). That 10page details has not touched critical aspect of MRT which is mainly its formation and charter plus the connection between MRT and contract co (it is not enough to call this a self company....the details is what is important)
Perhaps I have greater faith in the multistakeholder model than you do. Of course, we will not know how it works in practice until it is in practice -- but that's true of any plan. We are developing details and we will be subjecting the model to stress tests, so we should know as much anyone with a plan knows about how that plan will work in practice. Given that our goal is to transition NTIA's roles to the global multistakeholder community, we have to have some level of faith in the multistakeholder model. Otherwise, we should just tell the NTIA that transitioning their role to the global multistakeholder community can't be done. I agree that we need to flesh out how the MRT will be formed and what its charter might look like -- what are your suggestions for these aspects that would give you greater comfort? The connection between MRT and Contract Co. does need to be fleshed out as well -- I envision this as being written into Contract Co.'s bylaws. And by the way, I never called Contact Co. a "shelf company" -- it will be lightweight and limited but by definition, it can't be a shelf company. A shelf company (at least as this term is used in the U.S., refers to an inactive (and never activated) corporation -- it has no assets or liabilities, it has entered into no contracts or other obligations of any kind, it typically has a single "incorporator" rather than a full slate of officers and directors, and it has generic short-form documents rather than any kind of specially-drafted articles of incorporation or bylaws. Contract Co. should be as close as possible to a "shelf corporation".while still being able to perform its duties and meet the needs of the framework (which actually requires a fairly specifically-developed set of by-laws to keep it small and limited).
Without diminishing the importance of details -- the details are only important if the general framework looks promising and appropriate. I think we have that, and we have a good understanding of the principles that the details must meet to be acceptable to this group and the larger multistakeholder community. Now it's just a matter of following those principles and filling in the details -- not a small task, but not one to be overestimated either.
To answer your question directly, I don't believe that the current proposal is in any way based on the premise that the current operator lacks -- *and will continue to lack *-- appropriate *general* accountability mechanisms. It is based on the premise that removing the NTIA from the equation requires us to recommend *IANA-specific* accountability mechanisms, regardless of how improved ICANN's general accountability mechanisms might be (before or after the IANA Transition). That is what we have been tasked to do, and that is what we have done.
Greg, you mentioned earlier that the ability to move IANA is required (although i don't necessarily agree but it doesn't hurt to have it) so if there are adequate mechanism within ICANN wouldn't all that will be required is for the mechanism to trigger movement of IANA from ICANN? Why then do we require all the MRT/CSC structure? I also don't agree that NTIA said we should replicate contracting processes (you may direct me to what part of NTIA announcement that implied such) .
There is broad support for separability in the CWG. It's in our Principles (letter h) and it's in our Draft Proposal. You are entitled to disagree, but unless you can convince the CWG to change the Principles and the Proposal, any option we recommend must include separability.,
Well the principles is still in draft state (unless you mean it has just been finalised), in anycase, i have no problem with maintaining the current separability and this is something that can still be maintained internally by adding a few lines in the by-law
The Principles may be in draft but they have broad support, and they are heading toward finality. So it is certainly most appropriate to consider them heavily in examining any proposal. Right now, the current separability is entirely a creation of the IANA Contract -- I"m glad you have no problem maintaining the type of separability now embodied in the contract. However, you go on to say that this separability "can still be maintained internally by adding a few lines in the by-law." I find this assumption completely unsupported and thus completely lacking in credibility and value. Why do you think this is true? What would you put in the by-laws (by-laws aren't magic, they require words that work)? How would this work? What and who would trigger the separation? What would be the method for actually separating and finding a new Operator? Without answers to these questions, you are just running through the halls of the CWG with a jar of peanut butter, shouting "To Mars!" I'm not buying it -- not because I believe it's impossible -- but because I've been shown nothing on a functional level that makes me believe it is possible.
You say "if there are adequate mechanisms within ICANN...." What are these "adequate mechanisms"? Where would they come from? Remember, it's up to our CWG to come up with mechanisms relating to IANA accountability.
.....and this is the issue, we treat IANA accountability as if its rocket science, i think it may have been a mistake to have separated the CWG as its making it all look like the accountability this group is looking for is different from what the CWG-accountability is looking for.
It's not rocket science, and I don't believe we are treating it that way. It's just hard work. Whether having two CWGs is a mistake is beside the point. The accountability this group is looking for *IS* different from the accountability the CWG-Accountability is looking for. As I pointed out earlier in this thread:
*The key point I am making is that the "IANA specific aspect of the accountability" is within the scope of our CWG, and has been since the beginning of our work. As it says in our Charter: "Accountability for the administration of the IANA functions (i.e.,implementation and operational accountability), however, is properly within the scope of this working group." **Conversely, the Charter of CCWG-Accountability says "Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship."*
The CWG-Accountability is looking at the much broader question of enhancing ICANN's accountability to its stakeholders in all of its policy-making, implementing, operations, etc. -- everything *but* the accountability we are looking for.
Your "mechanism" is a complete mystery. If you want this group to consider an "internal to ICANN" mechanism that would move the right to perform the IANA Functions out of ICANN (and meet all the other requirements in this transition), you'll need to propose one.
The NTIA asks us to develop a proposal that transitions its stewardship to multi-stakeholder. It didn't say that the proposal has to be able to take the right to perform IANA function out of ICANN.
I agree that the NTIA did not say that our proposal has to be able to take the right to perform the IANA functions out of ICANN. However, the NTIA also did not preclude a proposal that takes the right to perform the IANA Functions out of ICANN. There was broad support within the CWG for a proposal that included the possibility and ability to take the right to perform the IANA Functions out of ICANN, and therefore that is in our proposal.
The way i interpreted it is that ICANN currently has a growing multi-stakeholder environment and this is the opportunity to transition the stewardship to that community so if this require updating ICANN-by law...so be it.
First, the NTIA did not refer to the "ICANN multistakeholder community," it referred to the "global multistakeholder community." These are not the same things. Nonetheless, I don't believe that this necessarily precludes an "internal-to-ICANN" solution, but it does mean that any such solution would have to bring stakeholders not present in ICANN into the oversight and accountability process. As for updating the ICANN by-laws, this not a magic wand. Without some idea of what this means (and I've asked a few questions above so that I and others can get some idea), saying "update the ICANN by-laws" is no more valuable than that NASA scientist saying "peanut butter."
Please note that I am not categorically precluding an "internal-to-ICANN" proposal. But right now, I don't see where that proposal is coming from, much less how it will satisfy even the most basic concerns of various stakeholders.
It is when we propose such and it gets rejected by ICANN board that we can justify that ICANN is not yet mature enough and a contracting route will suffice until there is significant indications of the organisation's maturity
First, we have to have a reasonably tangible and concrete "Internal-to-ICANN" proposal before the CWG, and that proposal has be further developed by and win the support of the CWG. We don't have even the first step of that , so your scenario above never happens. If it does happen, it's because the CWG decides that this "internal-to-ICANN" is the best proposal, not because we want to test the ICANN Board's "maturity", before putting forth the current draft proposal. I am confident we will put forth the proposal that gains the most support from the CWG and the stakeholders, regardless of whether the ICANN Board will like it. Right now, that seems likely to be a proposal growing out of the current draft proposal, since there is no other tangible proposal on the table. In any event, whether the ICANN Board would or even has the power to "reject" the proposal is open to question. As the ICG FAQ states:
*15. How will ICANN Board handle the final proposal submitted by the ICG?*
*The ICG expects that its proposal, having achieved consensus on the Coordination Group and within the Operational Communities, will be welcomed by the ICANN Board and dutifully transmitted to NTIA*
Finally, I never said that the NTIA said we should replicate contracting processes. What makes you say that?
Well you have just implied that in your statement below
No, I have not. I didn't even mention the NTIA. Please don't put words in my mouth.
However, unless we have another way to accomplish our objectives, the contract remains the most practical option.
I have "paraphrased" what i believe to be our objective above.
I'm not sure what you are referring to, or what your point is. Whatever
your paraphrase is, our objectives are already well stated in the NTIA's announcement, the ICG RFP and our charter, so hopefully your paraphrase is consistent with those base document.
Regards,
Greg
Regards
Greg
Thanks
Regards!
Greg
*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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*www.lawabel.com <http://www.lawabel.com/>*
On Sat, Dec 6, 2014 at 2:53 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Greg,
I am definitely not also in any form of agreement with an extension of the timeline especially as it may not be the same story after USA elections. I am also not sure I have seen much people calling for extension on this list... We both know what has been paramount subject of discussion in the last few weeks and timeline is the least of them. I am saying since it is definite ( it's a requirement) that some level of accountability will/MUST happen before transition, will it not already handle some of our fears that actually lead to the creation of the current transition proposal. My understanding is that the current transition proposal was mainly inspired on the premise of the current operator lacking appropriate accountability mechanism... No? As you seem to be implying otherwise by your mail.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 08:36, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
> Seun: > > I don't see how Strickling's remarks provide an "opportunity" for > anything. I presume you are referring to the "spin" that some are putting > on this speech as a "hint" that the timeline should be extended. I think > that is a baseless assertion. The NTIA has indicated since March that they > have the option to extend the agreement, so not only is this not "new news" > it's no news. It's also not news that both the IANA transition and > accountability "issues must be addressed before any transition > takes place." Not only is this not news to the CWG or the > community, it is in our proposal. So, I think the direct answer to your > question is "No," and wishing won't make it so. > > The remarks also clearly recognize that there are two work streams > -- IANA transition and enhanced ICANN accountability. Not to belabor the > obvious but we are the "IANA transition" work stream. Of course, there are > elements of accountability in our scope as well -- as Strickling refers to > it, a process that will "result in ICANN’s becoming even more > directly accountable to the customers of the IANA functions." It is that > type of accountability that we have to worry about, and which I believe our > proposal (while still a work in progress) addresses. I don't believe that > there is anything in our proposal that can be categorized as > "overreaching." Indeed, I think we have been quite mindful of staying > within our scope. > > I'm not sure what you are driving at -- do you want us to take on > the task of enhancing ICANN's accountability beyond the IANA function? > This would be massively "overreaching." Or do you want us not to deal with > accountability at all, leaving it to the CCWG-Accountability to handle all > elements of accountability, with the result that ICANN would then somehow > be "safe" for an "internal to ICANN" IANA transition? I think this would > be "underreaching." It also assumes that the only thing standing between us > and an "internal to ICANN" IANA transition is enhanced ICANN > accountability; I do not think this is the case. I think there is a need > for IANA-specific accountability regardless of the overall state of ICANN > accountability, and I think our proposal meets that need. > > In any event, we can neither grab the entire accountability mandate > or leave it all to the CCWG-Accountability. Rather, we need to deal with > the elements of accountability that fall within our bailiwick -- as we have > done all along -- and which are an integral part of satisfying the > requirement for transition, as it has been all along. > > Greg > > > > *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 Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com > > wrote: > >> Thanks for the share Greg, wouldn't this then give us the >> opportunity to rethink the accountability measures we propose to put in >> place in lieu of ICANN's accountability; Since ICANN accountability is a >> requirement for transition then there may be no need for the current >> overreaching transition structure we are proposing. >> >> Cheers! >> >> sent from Google nexus 4 >> kindly excuse brevity and typos. >> On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote: >> >>> All: >>> >>> I thought that Larry Strickling's remarks at a seminar yesterday >>> would be of interest to the group. Here is the portion of his speech that >>> appears germane to our work and that of the CWG-Accountability: >>> >>> I will finish up by addressing the challenges and opportunities >>> facing us in 2015 with respect to Internet policy. Our core mission at >>> NTIA is to ensure that the Internet remains an engine for economic growth, >>> innovation and free expression. >>> >>> Internationally, the United States has been a vocal advocate of >>> the bottom-up, consensus-based approach to Internet governance known as the >>> multistakeholder model. >>> >>> The multistakeholder model has enabled the Internet to develop >>> into an engine for innovation, free speech and economic growth. Under this >>> model, all stakeholders, whether they be from industry, civil society, or >>> government, come together in an inclusive, transparent, accountable forum >>> to make decisions and solve problems. As the Internet agency, NTIA’s job >>> is to strengthen and promote that model. >>> >>> In 2014, we have seen a growing acceptance of the multistakeholder >>> model around the world, but particularly in developing countries. Earlier >>> this year, Brazil hosted the successful NetMundial conference, which >>> brought together a wide range of stakeholders including technical experts, >>> civil society groups, industry representatives and government officials, >>> all on an equal footing with each other. At this meeting not only did >>> participants agree that Internet governance should be built on democratic >>> multistakeholder processes,” the entire meeting was a demonstration of the >>> open, participative, and consensus-driven governance that has allowed the >>> Internet to develop as an unparalleled engine of economic growth and >>> innovation. >>> >>> A month later, a High-Level Panel, headed by the president of >>> Estonia, Toomas Ilves released a report once again affirming the power of >>> multistakeholder policy development. The panel said it “recognizes, fully >>> supports, and adopts the Internet governance principles produced in the >>> NetMundial Statement.” >>> >>> Most recently, at the International Telecommunication Union’s 2014 >>> Plenipotentiary conference in Busan, Korea, last month, we saw the fruits >>> of all our work to preserve multistakeholder Internet governance. The >>> United States achieved all of its objectives in Busan, including keeping >>> the ITU’s work focused on its current mandate and not expanding its role >>> into Internet and cybersecurity issues. The U.S. delegation, led by >>> Ambassador Danny Sepulveda, successfully built consensus across nations to >>> protect the robust, innovative, multi-stakeholder Internet we enjoy today. >>> >>> This validation of the multistakeholder model comes at a critical >>> time. Last March, NTIA announced its intention to complete the >>> privatization of the Internet Domain Name System (DNS), currently managed >>> by the Internet Corporation for Assigned Names and Numbers (ICANN). This >>> process began in 1998, when ICANN took over important technical functions >>> related to the domain name system, known as the IANA functions, under a >>> contract with NTIA. In our March announcement, NTIA asked ICANN to convene >>> a multistakeholder process to develop a proposal to transition the U.S. >>> stewardship role over the IANA functions to the international community. We >>> did this to ensure that the multistakeholder model for DNS coordination >>> continues. >>> >>> When we announced this transition, we outlined some specific >>> conditions that must be addressed before this transition takes place. >>> First, the proposal must support and enhance the multistakeholder model of >>> Internet governance, in that it should be developed by the multistakeholder >>> community and have broad community support. More specifically, we will not >>> accept a transition proposal that replaces the NTIA role with a >>> government-led or intergovernmental organization solution. Second, the >>> proposal must maintain the security, stability, and resiliency of the >>> domain name system. Third, it must meet the needs and expectations of the >>> global customers and partners of the IANA services. And finally, it must >>> maintain the openness of the Internet. >>> >>> Now that we are eight months past our IANA announcement, it is >>> important to take stock of where this transition stands. >>> >>> We are pleased that the community has responded enthusiastically >>> to our call to develop a transition plan that will ensure the stability, >>> security and openness of the Internet. Acting as a facilitator, ICANN >>> announced this summer the formation of a group representing more than a >>> dozen Internet stakeholder communities that will help develop a transition >>> proposal. As set forth in its charter, the IANA Stewardship Transition >>> Coordination Group is “conduct[ing] itself transparently, consult[ing] with >>> a broad range of stakeholders, and ensur[ing] that its proposals support >>> the security and stability of the IANA functions.” >>> >>> The community is in the process of developing proposals for the >>> specific IANA functions. Earlier this week, a working group focused on >>> domain names released a 100-page proposal for community review and >>> comment. We expect proposals for other of the functions to surface over >>> the next month or so. The community hopes to submit its transition >>> proposal to NTIA by the end of next July, which would allow us to review >>> the proposal before the current contract expires at the end of September >>> 2015. I want to emphasize that we did not set a deadline for this >>> transition. If for some reason the community needs more time, we have the >>> option to extend the current contract for up to four years. >>> >>> ICANN has also launched a process to examine how to ensure it >>> remains accountable to the global Internet community. Specifically, this >>> process will examine how ICANN can strengthen its accountability mechanisms >>> to address the absence of its historical contractual relationship with >>> NTIA. NTIA believes that this accountability process needs to include the >>> stress testing of solutions to safeguard against future contingencies such >>> as attempts to influence or takeover ICANN functions that are not currently >>> possible with the IANA functions contract in place. >>> >>> The two work streams on the IANA transition and enhanced >>> accountability are directly linked and NTIA has repeatedly said that both >>> issues must be addressed before any transition takes place. >>> >>> I am confident that engaging the global Internet community to work >>> out these important issues will strengthen the multistakeholder process and >>> will result in ICANN’s becoming even more directly accountable to the >>> customers of the IANA functions and to the broader Internet community. >>> >>> Getting the transition right will be a major project for NTIA in >>> 2015. >>> The full remarks are at: >>> http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str... >>> >>> An article about these remarks by Kieren McCarty in the Register >>> is at: >>> http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... >>> <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...> >>> >>> Greg >>> >>> >>> *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 >>> >>> >
-- ------------------------------------------------------------------------
*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
-- ------------------------------------------------------------------------
*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
Greg: There have been suggestions from several people that we don’t have to worry much about accountability or separability when dealing with IANA, we can just “fix ICANN” through the CCWG-Accountability. The implication is that we can leave IANA in ICANN with no or very weak separability, and make sure that its power is not abused through the Accountability process. These people are overlooking a critical fact about the CCWG-Accountability. And that is that ICANN’s board remains in complete control of whatever outcome emerges from that process. The final proposal for the IANA transition, on the other hand, is in the hands of the ICG and the NTIA, two independent institutions. As ICANN itself wrote, “the Board is considering how it can provide assurance to all stakeholders that it will seriously consider and respect the recommendations arising out of the review.” Seriously considering and respecting “recommendations” means in effect that we are basically hoping that ICANN will agree to reform itself. I hope this fact exposes the key mistake underlying the “internal to ICANN” advocates. The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope. I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need. In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along. Greg Gregory S. Shatan • Abelman Frayne & Schwab 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<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: All: I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability: I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression. Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model. The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model. In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation. A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.” Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today. This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues. When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet. Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands. We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.” The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years. ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place. The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place. I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community. Getting the transition right will be a major project for NTIA in 2015. The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str... An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_accountability_no_iana/<http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_accountability_no_iana/> Greg Gregory S. Shatan • Abelman Frayne & Schwab 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<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
Milton, I agree that this is a key failing of the "internal to ICANN" approach, at least to the extent that such an approach relies on the success of the CCWG-Accountability. This is also a very real concern about the prospects for real success by the Accountability CCWG. If there is a viable "internal to ICANN" approach (and I haven't seen one yet), it has to stand on its own two feet (i.e., be self-sufficient) and not rely on a "more accountable" ICANN in order to succeed. Greg *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 Sun, Dec 7, 2014 at 10:55 AM, Milton L Mueller <mueller@syr.edu> wrote:
Greg:
There have been suggestions from several people that we don’t have to worry much about accountability or separability when dealing with IANA, we can just “fix ICANN” through the CCWG-Accountability. The implication is that we can leave IANA in ICANN with no or very weak separability, and make sure that its power is not abused through the Accountability process.
These people are overlooking a critical fact about the CCWG-Accountability. And that is that ICANN’s board remains in complete control of whatever outcome emerges from that process. The final proposal for the IANA transition, on the other hand, is in the hands of the ICG and the NTIA, two independent institutions. As ICANN itself wrote, “the Board is considering how it can provide assurance to all stakeholders that it will seriously consider and respect the recommendations arising out of the review.”
Seriously considering and respecting “recommendations” means in effect that we are basically hoping that ICANN will agree to reform itself.
I hope this fact exposes the key mistake underlying the “internal to ICANN” advocates.
The remarks also clearly recognize that there are two work streams -- IANA transition and enhanced ICANN accountability. Not to belabor the obvious but we are the "IANA transition" work stream. Of course, there are elements of accountability in our scope as well -- as Strickling refers to it, a process that will "result in ICANN’s becoming even more directly accountable to the customers of the IANA functions." It is that type of accountability that we have to worry about, and which I believe our proposal (while still a work in progress) addresses. I don't believe that there is anything in our proposal that can be categorized as "overreaching." Indeed, I think we have been quite mindful of staying within our scope.
I'm not sure what you are driving at -- do you want us to take on the task of enhancing ICANN's accountability beyond the IANA function? This would be massively "overreaching." Or do you want us not to deal with accountability at all, leaving it to the CCWG-Accountability to handle all elements of accountability, with the result that ICANN would then somehow be "safe" for an "internal to ICANN" IANA transition? I think this would be "underreaching." It also assumes that the only thing standing between us and an "internal to ICANN" IANA transition is enhanced ICANN accountability; I do not think this is the case. I think there is a need for IANA-specific accountability regardless of the overall state of ICANN accountability, and I think our proposal meets that need.
In any event, we can neither grab the entire accountability mandate or leave it all to the CCWG-Accountability. Rather, we need to deal with the elements of accountability that fall within our bailiwick -- as we have done all along -- and which are an integral part of satisfying the requirement for transition, as it has been all along.
Greg
*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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*www.lawabel.com <http://www.lawabel.com/>*
On Sat, Dec 6, 2014 at 1:31 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Thanks for the share Greg, wouldn't this then give us the opportunity to rethink the accountability measures we propose to put in place in lieu of ICANN's accountability; Since ICANN accountability is a requirement for transition then there may be no need for the current overreaching transition structure we are proposing.
Cheers!
sent from Google nexus 4 kindly excuse brevity and typos.
On 6 Dec 2014 00:43, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
All:
I thought that Larry Strickling's remarks at a seminar yesterday would be of interest to the group. Here is the portion of his speech that appears germane to our work and that of the CWG-Accountability:
I will finish up by addressing the challenges and opportunities facing us in 2015 with respect to Internet policy. Our core mission at NTIA is to ensure that the Internet remains an engine for economic growth, innovation and free expression.
Internationally, the United States has been a vocal advocate of the bottom-up, consensus-based approach to Internet governance known as the multistakeholder model.
The multistakeholder model has enabled the Internet to develop into an engine for innovation, free speech and economic growth. Under this model, all stakeholders, whether they be from industry, civil society, or government, come together in an inclusive, transparent, accountable forum to make decisions and solve problems. As the Internet agency, NTIA’s job is to strengthen and promote that model.
In 2014, we have seen a growing acceptance of the multistakeholder model around the world, but particularly in developing countries. Earlier this year, Brazil hosted the successful NetMundial conference, which brought together a wide range of stakeholders including technical experts, civil society groups, industry representatives and government officials, all on an equal footing with each other. At this meeting not only did participants agree that Internet governance should be built on democratic multistakeholder processes,” the entire meeting was a demonstration of the open, participative, and consensus-driven governance that has allowed the Internet to develop as an unparalleled engine of economic growth and innovation.
A month later, a High-Level Panel, headed by the president of Estonia, Toomas Ilves released a report once again affirming the power of multistakeholder policy development. The panel said it “recognizes, fully supports, and adopts the Internet governance principles produced in the NetMundial Statement.”
Most recently, at the International Telecommunication Union’s 2014 Plenipotentiary conference in Busan, Korea, last month, we saw the fruits of all our work to preserve multistakeholder Internet governance. The United States achieved all of its objectives in Busan, including keeping the ITU’s work focused on its current mandate and not expanding its role into Internet and cybersecurity issues. The U.S. delegation, led by Ambassador Danny Sepulveda, successfully built consensus across nations to protect the robust, innovative, multi-stakeholder Internet we enjoy today.
This validation of the multistakeholder model comes at a critical time. Last March, NTIA announced its intention to complete the privatization of the Internet Domain Name System (DNS), currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN). This process began in 1998, when ICANN took over important technical functions related to the domain name system, known as the IANA functions, under a contract with NTIA. In our March announcement, NTIA asked ICANN to convene a multistakeholder process to develop a proposal to transition the U.S. stewardship role over the IANA functions to the international community. We did this to ensure that the multistakeholder model for DNS coordination continues.
When we announced this transition, we outlined some specific conditions that must be addressed before this transition takes place. First, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support. More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. Second, the proposal must maintain the security, stability, and resiliency of the domain name system. Third, it must meet the needs and expectations of the global customers and partners of the IANA services. And finally, it must maintain the openness of the Internet.
Now that we are eight months past our IANA announcement, it is important to take stock of where this transition stands.
We are pleased that the community has responded enthusiastically to our call to develop a transition plan that will ensure the stability, security and openness of the Internet. Acting as a facilitator, ICANN announced this summer the formation of a group representing more than a dozen Internet stakeholder communities that will help develop a transition proposal. As set forth in its charter, the IANA Stewardship Transition Coordination Group is “conduct[ing] itself transparently, consult[ing] with a broad range of stakeholders, and ensur[ing] that its proposals support the security and stability of the IANA functions.”
The community is in the process of developing proposals for the specific IANA functions. Earlier this week, a working group focused on domain names released a 100-page proposal for community review and comment. We expect proposals for other of the functions to surface over the next month or so. The community hopes to submit its transition proposal to NTIA by the end of next July, which would allow us to review the proposal before the current contract expires at the end of September 2015. I want to emphasize that we did not set a deadline for this transition. If for some reason the community needs more time, we have the option to extend the current contract for up to four years.
ICANN has also launched a process to examine how to ensure it remains accountable to the global Internet community. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. NTIA believes that this accountability process needs to include the stress testing of solutions to safeguard against future contingencies such as attempts to influence or takeover ICANN functions that are not currently possible with the IANA functions contract in place.
The two work streams on the IANA transition and enhanced accountability are directly linked and NTIA has repeatedly said that both issues must be addressed before any transition takes place.
I am confident that engaging the global Internet community to work out these important issues will strengthen the multistakeholder process and will result in ICANN’s becoming even more directly accountable to the customers of the IANA functions and to the broader Internet community.
Getting the transition right will be a major project for NTIA in 2015.
The full remarks are at: http://www.ntia.doc.gov/speechtestimony/2014/remarks-assistant-secretary-str...
An article about these remarks by Kieren McCarty in the Register is at: http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account... <http://www.theregister.co.uk/2014/12/05/us_government_tells_icann_no_account...>
Greg
*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/>*
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participants (7)
-
Alan Greenberg -
Greg Shatan -
Jordan Carter -
Maarten Simon -
Milton L Mueller -
Olivier MJ Crepin-Leblond -
Seun Ojedeji