My concerns with the draft proposal and an alternative option
As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community. I am also quite aware that my alternative options are likely to be vehemently opposed by some. I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one. Overview Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that. Contract Co. Many of the issues surround the "entity" (as it was referred to in Frankfurt). The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT. The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014) Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not. There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later. Multistakeholder Periodic Review Team (PRT) The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity. The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly? So how this body, which is the critical keystone [http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued. A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend). Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body? Customer Standing Panel (CSC) It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??). There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members. Cost Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)? Acceptability The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN? It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government. It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either). Integratability The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead. We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative. Integrating these two approaches may be difficult. Lost Opportunity Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function. If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal. If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN. Alternative Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable. All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario). These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years. I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA. There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward. - ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts.
Thank you for sharing your concerns, Alan. These are concerns which I also share. In your paragraph about "Alternative", I believe that the alternative you propose is just one of several possible alternatives that do not require the creation of new corporations. A system of MoUs might also be considered, although I yet do not know how that would work. An IANA Supporting Organisation, perhaps? Uncooked suggestions from me which we should explore too. The current proposal appears to de-link and separate the IANA function so much out of ICANN's realm that it would make the need for an ICANN Accountability track 1 moot. The *tragedy* about the current status is that the Accountability CCWG track 1 has not started its work yet whilst the CWG on IANA Stewardship Transition is just about to declare its work complete. We have ended up with a carriage before the horses and in a side conversation I had with ICANN Staff I am not even sure whether there is an understanding that the ICANN Accountability track should be closely linked to this proposal if we decide that ICANN will have an active part in this. With the IANA functions operator remaining ICANN for the time being, ICANN is an active part in this. So thinking the Accountability track 1 is parallel to the IANA Stewardship transition track and will only come together when the ICANN Board will join it with the report received from the ICG is again unworkable. Finally, let me reiterate my concern that some have advocated "separability" as being fundamental to the proposal, over and beyond the concerns expressed by NTIA, ccTLD operators, the At-Large Community (we polled our WG and ALAC members about this) that operational stability and continuity was the most fundamental point to base our proposal on. Does that mean status quo for ICANN? Not necessarily - but again, let's please explore the different alternatives on the table. Kindest regards, Olivier On 29/11/2014 06:23, Alan Greenberg wrote:
As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community.
I am also quite aware that my alternative options are likely to be vehemently opposed by some.
I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one.
*Overview
*Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that.
*Contract Co.
*Many of the issues surround the "entity" (as it was referred to in Frankfurt). The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT.
The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014)
Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not.
There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later.
*Multistakeholder Periodic Review Team (PRT)
*The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity.
The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly?
So how this body, which is the critical keystone [http://en.wikipedia.org/wiki/Keystone_(architecture <http://en.wikipedia.org/wiki/Keystone_%28architecture>)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued. A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend).
Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body?
*Customer Standing Panel (CSC)
*It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??).
There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members.
*Cost
*Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)?
*Acceptability
*The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN?
It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government.
It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either).
*Integratability
*The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead.
We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative.
Integrating these two approaches may be difficult.
*Lost Opportunity
*Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function.
If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal.
If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN.
*Alternative
*Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable.
All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario).
These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years.
I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA.
There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward.
- ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts.
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
Yes, There are certainly other alternatives as well. I just presented the one that I had best thought out. I would be pleased to explore other as as well. Alan At 29/11/2014 04:40 AM, Olivier MJ Crepin-Leblond wrote:
Thank you for sharing your concerns, Alan. These are concerns which I also share.
In your paragraph about "Alternative", I believe that the alternative you propose is just one of several possible alternatives that do not require the creation of new corporations. A system of MoUs might also be considered, although I yet do not know how that would work. An IANA Supporting Organisation, perhaps? Uncooked suggestions from me which we should explore too.
The current proposal appears to de-link and separate the IANA function so much out of ICANN's realm that it would make the need for an ICANN Accountability track 1 moot. The *tragedy* about the current status is that the Accountability CCWG track 1 has not started its work yet whilst the CWG on IANA Stewardship Transition is just about to declare its work complete. We have ended up with a carriage before the horses and in a side conversation I had with ICANN Staff I am not even sure whether there is an understanding that the ICANN Accountability track should be closely linked to this proposal if we decide that ICANN will have an active part in this. With the IANA functions operator remaining ICANN for the time being, ICANN is an active part in this. So thinking the Accountability track 1 is parallel to the IANA Stewardship transition track and will only come together when the ICANN Board will join it with the report received from the ICG is again unworkable.
Finally, let me reiterate my concern that some have advocated "separability" as being fundamental to the proposal, over and beyond the concerns expressed by NTIA, ccTLD operators, the At-Large Community (we polled our WG and ALAC members about this) that operational stability and continuity was the most fundamental point to base our proposal on. Does that mean status quo for ICANN? Not necessarily - but again, let's please explore the different alternatives on the table.
Kindest regards,
Olivier
On 29/11/2014 06:23, Alan Greenberg wrote:
As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community.
I am also quite aware that my alternative options are likely to be vehemently opposed by some.
I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one.
Overview
Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that.
Contract Co.
Many of the issues surround the "entity" (as it was referred to in Frankfurt). The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT.
The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014)
Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not.
There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later.
Multistakeholder Periodic Review Team (PRT)
The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity.
The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly?
So how this body, which is the critical keystone [ http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued. A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend).
Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body?
Customer Standing Panel (CSC)
It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??).
There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members.
Cost
Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)?
Acceptability
The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN?
It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government.
It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either).
Integratability
The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead.
We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative.
Integrating these two approaches may be difficult.
Lost Opportunity
Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function.
If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal.
If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN.
Alternative
Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable.
All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario).
These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years.
I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA.
There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward.
- ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts.
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Alan-thank you for sharing your thoughtful concerns - and thanks as well to Olivier, Milton, and others who have responded to it with equal thoughtfulness. I salute the entire group, especially those who gathered in Frankfurt, for achieving the development of a remarkably detailed first draft for public comment in a very brief time - and yet, surveying this dialogue, I have to ask, is there a broad consensus within the CWG for what is about to be posted on Monday? Because if there is not then the time should be taken to develop that full consensus, rather than put out for public comment something which seems to be generating the characteristics of drafter's remorse. As Olivier notes: "The *tragedy* about the current status is that the Accountability CCWG track 1 has not started its work yet whilst the CWG on IANA Stewardship Transition is just about to declare its work complete. We have ended up with a carriage before the horses..." It has been clear from the start of this process that the IANA and Accountability tracks are to be linked and interdependent, yet you are putting out a draft without having a clue as to what will be proposed by the Accountability CCWG. That is because December 1 has been declared to be an immoveable date in order to get something to NTIA by early summer. But really, given that the Accountability CCWG has yet to begin its work, and will be dealing with issues of organizational accountability that are more complex and politically charged than the transition itself, what are the odds that it will have a final report and recommendations to NTIA by then? I am not saying it is impossible, just improbable. I also take quite seriously Alan's observation that "Integrating these two approaches [that of this CWG with those of the RIRs and the IETF] may be difficult." That is an understatement, and points out that this CWG is preparing to issue a proposal without having any idea of whether it will readily mesh with what will be forthcoming from the more technical groups, ceding the power to integrate them as it deems fit to the ICG. Haste makes waste, as the saying goes. Other random thoughts spurred by this thread: * As an attorney I am quite comfortable with the concept of a Contract Co. as the accountability mechanism, while recognizing that there are many details yet to be filled in, which is the problem when you are trying to build an airplane while flying it. But I recognize that the alternatives broached by Alan and others may be worthy of exploration, even if to be eventually dismissed, in the process of achieving broad consensus. Again, for me the key question is whether there is sufficient consensus within the CWG to publish the present proposal on Monday. If there is not then the community should really not be asked to spend the considerable time required to comment upon it. * If there is to be a Contract Co. then the issue of its jurisdiction is less important than the choice of law provision in its contract with ICANN (or subsequent IANA functions operator), designating the laws under which any contract dispute will be decided (whether by arbitration or litigation). While I know others will disagree I think there is only one answer there - U.S. law. ICANN is and will still be at the time of the transition a US non-profit under CA law and all of its contracts with contracted parties are likewise enforced under US law, so why would you introduce the complication of a different body of law? Further, the US system for contract law enforcement is quite well developed and predictable. Plus, if you want to ensure inciting the new Congress against the transition and create a huge headache for NTIA go ahead and designate another national jurisdiction for enforcement; so far as I'm concerned that would be a political "poison pill". This CWG is about creating a transition proposal that NTIA can embrace, not for any debate on changing the legal locus for ICANN the organization. * As for the cost of funding Contract Co,. make ICANN pay for the privilege of administering the IANA functions as it is the keystone of its policymaking authority and it can well afford it with the funds coming in from new gTLD domain registrations and contention auctions. Unused funds can be placed by Contract Co. into a rainy day fund that can be used for litigation if necessary or for post-ICANN operation, if the contract should ever be taken away from it. I hope those thoughts are of some helpfulness. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Olivier MJ Crepin-Leblond Sent: Saturday, November 29, 2014 4:40 AM To: cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option Thank you for sharing your concerns, Alan. These are concerns which I also share. In your paragraph about "Alternative", I believe that the alternative you propose is just one of several possible alternatives that do not require the creation of new corporations. A system of MoUs might also be considered, although I yet do not know how that would work. An IANA Supporting Organisation, perhaps? Uncooked suggestions from me which we should explore too. The current proposal appears to de-link and separate the IANA function so much out of ICANN's realm that it would make the need for an ICANN Accountability track 1 moot. The *tragedy* about the current status is that the Accountability CCWG track 1 has not started its work yet whilst the CWG on IANA Stewardship Transition is just about to declare its work complete. We have ended up with a carriage before the horses and in a side conversation I had with ICANN Staff I am not even sure whether there is an understanding that the ICANN Accountability track should be closely linked to this proposal if we decide that ICANN will have an active part in this. With the IANA functions operator remaining ICANN for the time being, ICANN is an active part in this. So thinking the Accountability track 1 is parallel to the IANA Stewardship transition track and will only come together when the ICANN Board will join it with the report received from the ICG is again unworkable. Finally, let me reiterate my concern that some have advocated "separability" as being fundamental to the proposal, over and beyond the concerns expressed by NTIA, ccTLD operators, the At-Large Community (we polled our WG and ALAC members about this) that operational stability and continuity was the most fundamental point to base our proposal on. Does that mean status quo for ICANN? Not necessarily - but again, let's please explore the different alternatives on the table. Kindest regards, Olivier On 29/11/2014 06:23, Alan Greenberg wrote: As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community. I am also quite aware that my alternative options are likely to be vehemently opposed by some. I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one. Overview Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that. Contract Co. Many of the issues surround the "entity" (as it was referred to in Frankfurt). The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT. The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014) Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not. There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later. Multistakeholder Periodic Review Team (PRT) The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity. The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly? So how this body, which is the critical keystone [ http://en.wikipedia.org/wiki/Keystone_(architecture<http://en.wikipedia.org/wiki/Keystone_%28architecture>)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued. A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend). Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body? Customer Standing Panel (CSC) It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??). There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members. Cost Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)? Acceptability The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN? It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government. It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either). Integratability The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead. We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative. Integrating these two approaches may be difficult. Lost Opportunity Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function. If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal. If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN. Alternative Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable. All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario). These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years. I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA. There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward. - ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts. _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5557 / Virus Database: 4223/8641 - Release Date: 11/27/14
sent from Google nexus 4 kindly excuse brevity and typos. On 29 Nov 2014 21:04, "Phil Corwin" <psc@vlaw-dc.com> wrote:
Alan-thank you for sharing your thoughtful concerns – and thanks as well
to Olivier, Milton, and others who have responded to it with equal thoughtfulness.
· As an attorney I am quite comfortable with the concept of a
Contract Co. as the accountability mechanism, while recognizing that there are many details yet to be filled in, which is the problem when you are trying to build an airplane while flying it. But I recognize that the alternatives broached by Alan and others may be worthy of exploration, even if to be eventually dismissed, in the process of achieving broad consensus.
Interesting you already concluded other options will fall prey of being dismissed. Maybe it's just the way we have all been systematically swayed into believing there is an extraordinary gold mining in what IANA does and the only way to secure it is by contracting. As I have said before, we will only be deceiving ourselves by saying a contracting route in the manner presented is the only way to ensure Accountability of the IANA operator... there are just 2 things required: - Maintain current separation of IANA department to allow for separability. - Ensure IANA record keeping is done by policy To achieve that without creating all the complicated entities et all. This community needs to recognise that IANA is set of bounded functions that does not need to be separated at the moment. It is at that point that a legal way to reflect those 2 features above can then be determined.
Again, for me the key question is whether there is sufficient consensus within the CWG to publish the present proposal on Monday. If there is not then the community should really not be asked to spend the considerable time required to comment upon it.
A question which was obviously skipped in this process.
<snip>
I hope those thoughts are of some helpfulness.
Thanks Cheers!
Best to all, Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
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Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: cwg-stewardship-bounces@icann.org [mailto:
cwg-stewardship-bounces@icann.org] On Behalf Of Olivier MJ Crepin-Leblond
Sent: Saturday, November 29, 2014 4:40 AM To: cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option
Thank you for sharing your concerns, Alan. These are concerns which I also share.
In your paragraph about "Alternative", I believe that the alternative you propose is just one of several possible alternatives that do not require the creation of new corporations. A system of MoUs might also be considered, although I yet do not know how that would work. An IANA Supporting Organisation, perhaps? Uncooked suggestions from me which we should explore too.
The current proposal appears to de-link and separate the IANA function so much out of ICANN's realm that it would make the need for an ICANN Accountability track 1 moot. The *tragedy* about the current status is that the Accountability CCWG track 1 has not started its work yet whilst the CWG on IANA Stewardship Transition is just about to declare its work complete. We have ended up with a carriage before the horses and in a side conversation I had with ICANN Staff I am not even sure whether there is an understanding that the ICANN Accountability track should be closely linked to this proposal if we decide that ICANN will have an active part in this. With the IANA functions operator remaining ICANN for the time being, ICANN is an active part in this. So thinking the Accountability track 1 is parallel to the IANA Stewardship transition track and will only come together when the ICANN Board will join it with the report received from the ICG is again unworkable.
Finally, let me reiterate my concern that some have advocated "separability" as being fundamental to the proposal, over and beyond the concerns expressed by NTIA, ccTLD operators, the At-Large Community (we polled our WG and ALAC members about this) that operational stability and continuity was the most fundamental point to base our proposal on. Does that mean status quo for ICANN? Not necessarily - but again, let's please explore the different alternatives on the table.
Kindest regards,
Olivier
On 29/11/2014 06:23, Alan Greenberg wrote:
As I have mentioned during the F2F meeting in Frankfurt and on the most
recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community.
I am also quite aware that my alternative options are likely to be
vehemently opposed by some.
I should also add that there are aspects of the current draft CWG
proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one.
Overview
Many of my concerns are due to the large number of "details" that are,
as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that.
Contract Co.
Many of the issues surround the "entity" (as it was referred to in
Frankfurt). The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT.
The jurisdiction under which the company is registered has been the
subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014)
Without details of exactly how this corporation will exist, it is
impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not.
There has been no discussion about how this entity, or any part of the
overall proposal, is funded. More on this later.
Multistakeholder Periodic Review Team (PRT)
The PRT is effectively the operational arm of Contract Co. It is the
entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity.
The description says that it is a "body" with representatives selected
by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly?
So how this body, which is the critical keystone [
http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued. A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend).
Surely, the PRT, which is implicitly all powerful, would need a new
oversight mechanism over it! And who oversees THAT oversight body?
Customer Standing Panel (CSC)
It is unclear exactly what this body monitors. If it is JUST service
levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??).
There is reference to Liaison from ACs and SOs on the CSC. In the ICANN
context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members.
Cost
Cost has been mentioned briefly above, but it is a significant issue.
Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)?
Acceptability
The last time I heard Larry Strickling talk about the stewardship
transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN?
It is not at all clear that a proposal such as one that the CWG has put
in this draft would be acceptable to the US government.
It will certainly not be a favoured proposal from the point of view of
the ICANN Board (who may not have a direct say in this but cannot be totally ignored either).
Integratability
The ICG will be tasked with integrating the CWG proposal with that of
the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead.
We do not definitively know what those proposals will be, but
indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative.
Integrating these two approaches may be difficult.
Lost Opportunity
Part of the IANA Stewardship Transition is to put in place suitable
ICANN accountability and governance changes so as to ensure the continuity of the IANA function.
If all of the questions posed here, and the ones raised by others are
addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
The new situation would be where Contract Co. awards the IANA contract.
The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
Notice the parallel wording. ICANN really has no motivation to change to
effect this change. And in all likelihood any change associated with this transition will be minimal.
If we go down the path of the current draft CWG proposal, I believe that
a major opportunity will have been lost to reform ICANN.
Alternative
Simply criticizing the current CWG draft proposal is not particularly
useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable.
All of the complexity of the CWG draft proposal is there to cover the
eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario).
These worst case alternatives are indeed possible. And since under the
current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years.
I suggest that there are ways to alter ICANN's Bylaws to allow the
effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA.
There are a number of components that I will describe. They are not
necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward.
- ACs and SOs must be given the ability to recall their sitting
Board member. There will be no need to await the end of the current 3-year term.
- Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts.
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Dear all, On 30 November 2014 at 06:45, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
On 29 Nov 2014 21:04, "Phil Corwin" <psc@vlaw-dc.com> wrote:
Alan-thank you for sharing your thoughtful concerns - and thanks as well
to Olivier, Milton, and others who have responded to it with equal thoughtfulness.
· As an attorney I am quite comfortable with the concept of a
Contract Co. as the accountability mechanism, while recognizing that there are many details yet to be filled in, which is the problem when you are trying to build an airplane while flying it. But I recognize that the alternatives broached by Alan and others may be worthy of exploration, even if to be eventually dismissed, in the process of achieving broad consensus.
Interesting you already concluded other options will fall prey of being dismissed. Maybe it's just the way we have all been systematically swayed into believing there is an extraordinary gold mining in what IANA does and the only way to secure it is by contracting. As I have said before, we will only be deceiving ourselves by saying a contracting route in the manner presented is the only way to ensure Accountability of the IANA operator... there are just 2 things required:
- Maintain current separation of IANA department to allow for separability. - Ensure IANA record keeping is done by policy
To achieve that without creating all the complicated entities et all. This community needs to recognise that IANA is set of bounded functions that does not need to be separated at the moment. It is at that point that a legal way to reflect those 2 features above can then be determined.
Seun, in my view you are missing the point that *today*, there is a contract and that the contract could be given to someone else. The provisions of that contract are what require the *current* separation of the IANA department. A solution that only does your two things above is *worse* than the status quo in respect of accountability. best, Jordan -- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *To promote the Internet's benefits and uses, and protect its potential.*
sent from Google nexus 4 kindly excuse brevity and typos. On 30 Nov 2014 03:07, "Jordan Carter" <jordan@internetnz.net.nz> wrote:
To achieve that without creating all the complicated entities et all.
This community needs to recognise that IANA is set of bounded functions that does not need to be separated at the moment. It is at that point that a legal way to reflect those 2 features above can then be determined.
Seun, in my view you are missing the point that *today*, there is a
contract and that the contract could be given to someone else. The provisions of that contract are what require the *current* separation of the IANA department.
And you may also be missing the point that it will not be the same story with the contracting entity going forward. At the moment we have not had any reason to worry about the contracting entity. That is likely to change going forward. Like I said, (which was also mentioned by other members) you don't necessarily need to go the contracting route currently presented in order to achieve the ability to move IANA from ICANN when ultimately necessary. We should stop mapping accountability to contracting...it's deceit that does not necessarily build an organisation. A good accountability is that which is built in an organisation...Which puts not just the board in check, but also the community.
A solution that only does your two things above is *worse* than the status quo in respect of accountability.
IMO those 2 things are the main items. The 3rd one would mainly rest on how well and efficient IANA operates which can be well defined in the SLA... Again these things are already existing. We need to recognise that IANA operation is currently at the level where almost everything is automated, so if things are going bad, even the non-technical person will notice it. When such is noticed, a mechanism to fix things is what is required. Regards
best, Jordan
-- Jordan Carter
Chief Executive InternetNZ
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
To promote the Internet's benefits and uses, and protect its potential.
Phil, I do think it would be nice if the CCWG on Accountability was further along, but I don't agree with your premise that this group cannot do anything because of that. In fact, the other group has to know basically what we are proposing as a future IANA structure before they can determine what kind of accountability measures have to be put into place before the transition can happen. For example, the structure coming out of Frankfurt, despite some lack of detail, had very good accountability features. (By this I am referring to the contracting feature and the independent appeals process). Thus the CCWG on Accountability could have taken that as a starting point and said, "what do we need to add, if anything, before this structure is put into place?" If we roll back to square one, as some of the opponents of strong accountability in ALAC wish to do, what exactly would the CCWG be able to do in their track one deliberations? They would indeed be working in a vacuum. --MM From: Phil Corwin [mailto:psc@vlaw-dc.com] Sent: Saturday, November 29, 2014 12:03 PM To: Olivier MJ Crepin-Leblond; cwg-stewardship@icann.org Cc: Alan Greenberg; Milton L Mueller Subject: RE: [CWG-Stewardship] My concerns with the draft proposal and an alternative option Alan-thank you for sharing your thoughtful concerns - and thanks as well to Olivier, Milton, and others who have responded to it with equal thoughtfulness. I salute the entire group, especially those who gathered in Frankfurt, for achieving the development of a remarkably detailed first draft for public comment in a very brief time - and yet, surveying this dialogue, I have to ask, is there a broad consensus within the CWG for what is about to be posted on Monday? Because if there is not then the time should be taken to develop that full consensus, rather than put out for public comment something which seems to be generating the characteristics of drafter's remorse. As Olivier notes: "The *tragedy* about the current status is that the Accountability CCWG track 1 has not started its work yet whilst the CWG on IANA Stewardship Transition is just about to declare its work complete. We have ended up with a carriage before the horses..." It has been clear from the start of this process that the IANA and Accountability tracks are to be linked and interdependent, yet you are putting out a draft without having a clue as to what will be proposed by the Accountability CCWG. That is because December 1 has been declared to be an immoveable date in order to get something to NTIA by early summer. But really, given that the Accountability CCWG has yet to begin its work, and will be dealing with issues of organizational accountability that are more complex and politically charged than the transition itself, what are the odds that it will have a final report and recommendations to NTIA by then? I am not saying it is impossible, just improbable. I also take quite seriously Alan's observation that "Integrating these two approaches [that of this CWG with those of the RIRs and the IETF] may be difficult." That is an understatement, and points out that this CWG is preparing to issue a proposal without having any idea of whether it will readily mesh with what will be forthcoming from the more technical groups, ceding the power to integrate them as it deems fit to the ICG. Haste makes waste, as the saying goes. Other random thoughts spurred by this thread: * As an attorney I am quite comfortable with the concept of a Contract Co. as the accountability mechanism, while recognizing that there are many details yet to be filled in, which is the problem when you are trying to build an airplane while flying it. But I recognize that the alternatives broached by Alan and others may be worthy of exploration, even if to be eventually dismissed, in the process of achieving broad consensus. Again, for me the key question is whether there is sufficient consensus within the CWG to publish the present proposal on Monday. If there is not then the community should really not be asked to spend the considerable time required to comment upon it. * If there is to be a Contract Co. then the issue of its jurisdiction is less important than the choice of law provision in its contract with ICANN (or subsequent IANA functions operator), designating the laws under which any contract dispute will be decided (whether by arbitration or litigation). While I know others will disagree I think there is only one answer there - U.S. law. ICANN is and will still be at the time of the transition a US non-profit under CA law and all of its contracts with contracted parties are likewise enforced under US law, so why would you introduce the complication of a different body of law? Further, the US system for contract law enforcement is quite well developed and predictable. Plus, if you want to ensure inciting the new Congress against the transition and create a huge headache for NTIA go ahead and designate another national jurisdiction for enforcement; so far as I'm concerned that would be a political "poison pill". This CWG is about creating a transition proposal that NTIA can embrace, not for any debate on changing the legal locus for ICANN the organization. * As for the cost of funding Contract Co,. make ICANN pay for the privilege of administering the IANA functions as it is the keystone of its policymaking authority and it can well afford it with the funds coming in from new gTLD domain registrations and contention auctions. Unused funds can be placed by Contract Co. into a rainy day fund that can be used for litigation if necessary or for post-ICANN operation, if the contract should ever be taken away from it. I hope those thoughts are of some helpfulness. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Olivier MJ Crepin-Leblond Sent: Saturday, November 29, 2014 4:40 AM To: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option Thank you for sharing your concerns, Alan. These are concerns which I also share. In your paragraph about "Alternative", I believe that the alternative you propose is just one of several possible alternatives that do not require the creation of new corporations. A system of MoUs might also be considered, although I yet do not know how that would work. An IANA Supporting Organisation, perhaps? Uncooked suggestions from me which we should explore too. The current proposal appears to de-link and separate the IANA function so much out of ICANN's realm that it would make the need for an ICANN Accountability track 1 moot. The *tragedy* about the current status is that the Accountability CCWG track 1 has not started its work yet whilst the CWG on IANA Stewardship Transition is just about to declare its work complete. We have ended up with a carriage before the horses and in a side conversation I had with ICANN Staff I am not even sure whether there is an understanding that the ICANN Accountability track should be closely linked to this proposal if we decide that ICANN will have an active part in this. With the IANA functions operator remaining ICANN for the time being, ICANN is an active part in this. So thinking the Accountability track 1 is parallel to the IANA Stewardship transition track and will only come together when the ICANN Board will join it with the report received from the ICG is again unworkable. Finally, let me reiterate my concern that some have advocated "separability" as being fundamental to the proposal, over and beyond the concerns expressed by NTIA, ccTLD operators, the At-Large Community (we polled our WG and ALAC members about this) that operational stability and continuity was the most fundamental point to base our proposal on. Does that mean status quo for ICANN? Not necessarily - but again, let's please explore the different alternatives on the table. Kindest regards, Olivier On 29/11/2014 06:23, Alan Greenberg wrote: As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community. I am also quite aware that my alternative options are likely to be vehemently opposed by some. I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one. Overview Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that. Contract Co. Many of the issues surround the "entity" (as it was referred to in Frankfurt). The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT. The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014) Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not. There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later. Multistakeholder Periodic Review Team (PRT) The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity. The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly? So how this body, which is the critical keystone [ http://en.wikipedia.org/wiki/Keystone_(architecture<http://en.wikipedia.org/wiki/Keystone_%28architecture>)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued. A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend). Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body? Customer Standing Panel (CSC) It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??). There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members. Cost Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)? Acceptability The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN? It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government. It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either). Integratability The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead. We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative. Integrating these two approaches may be difficult. Lost Opportunity Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function. If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal. If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN. Alternative Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable. All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario). These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years. I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA. There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward. - ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts. _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5557 / Virus Database: 4223/8641 - Release Date: 11/27/14
Milton, I do not know of ANY ALAC or At-Large participants in the process who are opponents of strong ICANN accountability. Just because we do not agree with you that the ONLY way to achieve strong accountability is to be able to pull the IANA contract does not imply that we are against other forms of strong accountability. In fact, what we favour would not only ensure strong accountability for IANA functions, but for other aspects of ICANN as well - something that the proposal that you favour would not do. Please do not incorrectly characterize our position. Alan At 29/11/2014 01:02 PM, Milton L Mueller wrote:
If we roll back to square one, as some of the opponents of strong accountability in ALAC wish to do, what exactly would the CCWG be able to do in their track one deliberations? They would indeed be working in a vacuum.
--MM
Hi, I think the point is that without the ability to ultimately pull the contract, as the IETF can, for another provider, there can be no accountability. To rely on ICANN becoming other than what it is, an organization controlled 100% by a Board that can change any of it rules anytime it wishes, is probably far too optimistic, and certainly not something can either be completed or guaranteed by the time we need an IANA solution. Insisting on iron clad ICANN accountability as a precursor to transition seems a way to stop the transition from happening in 2015. I happen to believe that ICANN should hold the contract for a significant period of time before another RFP and that it will hold it for a long time after an RFP, but I beleive that without the promise of an RFP in the future, there is little to stop the Board-Sr.Staff from spinning any accountability solution we come up with into an empty box checking exercise. Both you and Olivier were on the ATRT and I believe you have seen how slippery that whole process could be without the anchor of an IANA contract that could be lost. I know some argue for the nuclear option of an RFP on demand in case of malfeasance or other dereliction of duty. The problem with 'nuclear options,' is that they never get put into action except in cases of real dismal disaster. I beleive a regualr RFP is a much better tool for avoiding disaster as opposed to waiting for it to it. I also understand that there may be a concern in At-Large community that nothing could ever be as open and inclusive as ICANN is now, especially with regard to user concerns. I beleive the solution for that is to make sure the process we transition to complies with multistakeholder principles, i.e. bottom-up, open and inclusive &c., and not to just accept that ICANN will continue becoming ever more complaint with multistakeholder principles. In fact I fear that without the periodic RFP for the IANA contract, ICANN's commitment to the multistakeholder principles may weaken in the face of other pressures. avri On 29-Nov-14 20:51, Alan Greenberg wrote:
Milton, I do not know of ANY ALAC or At-Large participants in the process who are opponents of strong ICANN accountability.
Just because we do not agree with you that the ONLY way to achieve strong accountability is to be able to pull the IANA contract does not imply that we are against other forms of strong accountability.
In fact, what we favour would not only ensure strong accountability for IANA functions, but for other aspects of ICANN as well - something that the proposal that you favour would not do.
Please do not incorrectly characterize our position.
Alan
At 29/11/2014 01:02 PM, Milton L Mueller wrote:
If we roll back to square one, as some of the opponents of strong accountability in ALAC wish to do, what exactly would the CCWG be able to do in their track one deliberations? They would indeed be working in a vacuum.
--MM
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
As much as I appreciate your attempt at comprehending my (or perhaps our collective) motives, this has nothing to do with it. This is not a value-the-poor-user issue. I believe that we have invened an extremely cumbersome and possibly impossible-to-execute-well process that will have little impact but a high cost if the contract stays with ICANN, and if it is to move, there will be a high risk of either capture or the lessening of multistakeholder principles. If I am wrong and we can pull this off in a transparent, practical and low-cost manner, dandy. But I have yet to hear ANY answers to the real concerns I have expressed. Alan At 29/11/2014 04:27 PM, Avri Doria wrote:
I also understand that there may be a concern in At-Large community that nothing could ever be as open and inclusive as ICANN is now, especially with regard to user concerns. I beleive the solution for that is to make sure the process we transition to complies with multistakeholder principles, i.e. bottom-up, open and inclusive &c., and not to just accept that ICANN will continue becoming ever more complaint with multistakeholder principles. In fact I fear that without the periodic RFP for the IANA contract, ICANN's commitment to the multistakeholder principles may weaken in the face of other pressures.
On 29/11/2014 17:03, Phil Corwin wrote:
I salute the entire group, especially those who gathered in Frankfurt, for achieving the development of a remarkably detailed first draft for public comment in a very brief time – and yet, surveying this dialogue, I have to ask, is there a broad consensus within the CWG for what is about to be posted on Monday? Because if there is not then the time should be taken to develop that full consensus, rather than put out for public comment something which seems to be generating the characteristics of drafter’s remorse.
This question is now extremely urgent. Do the organisers consider there is a consensus? To my mind that's a clear "No", but it's not for me to call it. If not, do they still planning to go ahead and solicit community consensus for a document that doesn't even command consensus amongst the committee that prepared it? If it's not being published tomorrow as the CWG's draft proposal, are we setting a new target date to have a consensus on the CWG? -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Hi all, If we are to defer, what are we waiting for? Another proposal will be ready by when? And whatever the proposal origins, it will come without any benefit of any wider discussion. Certainly in Frankfurt the discussion focussed fairly quickly on a functions-based solution (as opposed to the form-led ideas of the straw-men. There was general consensus with that, recognising that we would spend a lot of time on discussing models without any realistic expectation of consensus. OK, there was a degree of nervousness and everyone giving a bit. But no one really had an alternative that offered a reasonable basis for consensus. I recognise that the current draft is loaded with a lot of stuff that still needs to be resolved. (Thank you Olivier, for your analysis: a useful checklist for us as we move forward. Alan's points of concern, reiterated on last week's call, likewise.) But frankly I've not heard anything that is not also likely to apply to other proposals. We can delay further, but I feel we will simply be delaying, and we haven't got the luxury of time. Phil Corwin's comment on how the names piece will fit in with the other elements is quite valid and as a member of the ICG I recognise that we might have a really difficulty of reconciling the different strands. However, however long the CWG assesses how it might assure the best fit, until we see all the proposals and start the cross-community discussion, we are not going to get anywhere nearer to the solution. Given time, I'm sure we could develop a beautiful, well-reasoned and complete solution. Whether we would have more consensus than we have at the moment, I'd doubt. Would we be anywhere nearer finding a three-function solution? Ditto. The excellent is the enemy of the good. As for the link to ICANN accountability: with what we've got from Frankfurt, I think we have a reasonable idea of what we need from stream 1. We cannot tell stream 1 what answer we want, but we can tell it what issue(s) we need them to consider. Again, if we seek to engineer the whole piece, we risk simply missing the deadline and trespassing on the responsibilities of others. Best Martin -----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: 30 November 2014 17:21 To: Phil Corwin; Olivier Crepin-Leblond; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option On 29/11/2014 17:03, Phil Corwin wrote:
I salute the entire group, especially those who gathered in Frankfurt, for achieving the development of a remarkably detailed first draft for public comment in a very brief time - and yet, surveying this dialogue, I have to ask, is there a broad consensus within the CWG for what is about to be posted on Monday? Because if there is not then the time should be taken to develop that full consensus, rather than put out for public comment something which seems to be generating the characteristics of drafter's remorse.
This question is now extremely urgent. Do the organisers consider there is a consensus? To my mind that's a clear "No", but it's not for me to call it. If not, do they still planning to go ahead and solicit community consensus for a document that doesn't even command consensus amongst the committee that prepared it? If it's not being published tomorrow as the CWG's draft proposal, are we setting a new target date to have a consensus on the CWG? -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
On 30/11/2014 19:51, Martin Boyle wrote:
As for the link to ICANN accountability: with what we've got from Frankfurt, I think we have a reasonable idea of what we need from stream 1. We cannot tell stream 1 what answer we want, but we can tell it what issue(s) we need them to consider. Again, if we seek to engineer the whole piece, we risk simply missing the deadline and trespassing on the responsibilities of others.
Martin, This paragraph opened my eyes to a possible misunderstanding on my part of your position. As you know, I think that resolving some (not all, but some critical) ICANN accountability issues is essential to a successful NTIA transition. After Frankfurt, I had begun to lose confidence that CCWG-Stewardship shared this view. This was very disheartening to me. I have no objection to leaving ICANN accountability issues to be developed by CCWG-Accountability, so long as the essential Workstream 1 issues make it into the final ICG proposal to NTIA. But since CCWG-Accountability doesn't report to the ICG but the ICANN Board, I think it is incumbent on this working group to pick up on their output, and to ensure that ICG hears their output as part of the "naming community's proposal". Hence my request for some placeholder text in this proposal that CCWG-Accountability can fill out. Seeing that there is no such placeholder text now, and having had several of my approaches to try to achieve such text rejected in Frankfurt, I had begun to think that the rest of this group wanted to exclude anything relating to ICANN's policy-making role from the ultimate transition proposal. That worried me greatly. Your paragraph above gives me new hope that we can have a meeting of minds, so please let me check that I have understood you correctly. When you say "what we need from workstream 1", do you indeed mean that the proposal from the names community, that goes to ICG, and ultimately to NTIA, must include such proposals for ICANN accountability as CCWG-Accountability decide are an essential precondition for NTIA transition? Or to put it another way, if CCWG-Accountability decide that ICANN must be contractually bound to certain commitments to ensure that gTLD policy remains transparent, community-based bottom policy (and so forth), are you open to the possibility of having those commitments written into the requirements that the PRT is to enforce on ICANN, alongside the requirements for the IANA functions that this CCWG has defined? Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Malcolm, I of course cannot speak for Martin nor am I trying to, but let me say that I think I have the same concerns as you regarding ICANN Accountability and I think we need to continue to ensure that the connection to what we are doing in the IANA CWG connects with overall ICANN accountability. I think our end product must ensure that or we will have ignored one the most unified points that the community has communicated. That said though, I don't how the PRT can enforce that as you suggest. But we can write our proposal in such a way that it will ultimately require that. We don't need to do that for this version though. Chuck -----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Sunday, November 30, 2014 4:23 PM To: Martin Boyle; Phil Corwin; Olivier Crepin-Leblond; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option On 30/11/2014 19:51, Martin Boyle wrote:
As for the link to ICANN accountability: with what we've got from Frankfurt, I think we have a reasonable idea of what we need from stream 1. We cannot tell stream 1 what answer we want, but we can tell it what issue(s) we need them to consider. Again, if we seek to engineer the whole piece, we risk simply missing the deadline and trespassing on the responsibilities of others.
Martin, This paragraph opened my eyes to a possible misunderstanding on my part of your position. As you know, I think that resolving some (not all, but some critical) ICANN accountability issues is essential to a successful NTIA transition. After Frankfurt, I had begun to lose confidence that CCWG-Stewardship shared this view. This was very disheartening to me. I have no objection to leaving ICANN accountability issues to be developed by CCWG-Accountability, so long as the essential Workstream 1 issues make it into the final ICG proposal to NTIA. But since CCWG-Accountability doesn't report to the ICG but the ICANN Board, I think it is incumbent on this working group to pick up on their output, and to ensure that ICG hears their output as part of the "naming community's proposal". Hence my request for some placeholder text in this proposal that CCWG-Accountability can fill out. Seeing that there is no such placeholder text now, and having had several of my approaches to try to achieve such text rejected in Frankfurt, I had begun to think that the rest of this group wanted to exclude anything relating to ICANN's policy-making role from the ultimate transition proposal. That worried me greatly. Your paragraph above gives me new hope that we can have a meeting of minds, so please let me check that I have understood you correctly. When you say "what we need from workstream 1", do you indeed mean that the proposal from the names community, that goes to ICG, and ultimately to NTIA, must include such proposals for ICANN accountability as CCWG-Accountability decide are an essential precondition for NTIA transition? Or to put it another way, if CCWG-Accountability decide that ICANN must be contractually bound to certain commitments to ensure that gTLD policy remains transparent, community-based bottom policy (and so forth), are you open to the possibility of having those commitments written into the requirements that the PRT is to enforce on ICANN, alongside the requirements for the IANA functions that this CCWG has defined? Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
Malcolm, Chuck, I think I'm with what Chuck is saying. It has always worried me that people try to use IANA to solve problems where IANA has no power or authority. This is where I have problems - otherwise of no concern to me! - with linking to the gTLD policy and contracting process. That element - and the way the ICANN Board listens to the GNSO policy process or re-writes contract conditions or enforcement approaches - is, in my mind, firmly in stream 1 and nothing to do with the IANA oversight transition. (Of course, as I said in Frankfurt, I am an outsider to this part of the namespace, so I'm ok with being put right.) But to make myself perfectly clear, I see a massive problem with using the IANA function to re-assess that which has been assessed in the approvals or enforcement function in ICANN, given the contractual relationship between the gTLDs and ICANN. Put another way, this would be for IANA to turn down a delegation that has met the assessment proposal (litigation risks, to say the least), or to refuse a revocation request by ICANN because of failure to meet contract conditions (if IANA is no longer run in IANA, why wouldn't ICANN sue?). Such authority to playing the maverick could have serious consequences for ccTLDs and national decisions and authority. What I was trying to say was, where we have particular concerns for the transition that would more properly belong to stream 1 - be that telling them that there needs to be mechanisms to ensure that the integrity of the gTLD policy processes and implementation are assured, whatever - we flag this to them for attention. For me the red-line is that IANA operations should not introduce new policies or conditions on the grounds that it fits more nicely with a particular model or that the policy was lacking. Hope this helps to clarify where I'm coming from. Cheers, Martin -----Original Message----- From: Gomes, Chuck [mailto:cgomes@verisign.com] Sent: 30 November 2014 22:39 To: Malcolm Hutty; Martin Boyle; Phil Corwin; Olivier Crepin-Leblond; cwg-stewardship@icann.org Subject: RE: [CWG-Stewardship] My concerns with the draft proposal and an alternative option Malcolm, I of course cannot speak for Martin nor am I trying to, but let me say that I think I have the same concerns as you regarding ICANN Accountability and I think we need to continue to ensure that the connection to what we are doing in the IANA CWG connects with overall ICANN accountability. I think our end product must ensure that or we will have ignored one the most unified points that the community has communicated. That said though, I don't how the PRT can enforce that as you suggest. But we can write our proposal in such a way that it will ultimately require that. We don't need to do that for this version though. Chuck -----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Sunday, November 30, 2014 4:23 PM To: Martin Boyle; Phil Corwin; Olivier Crepin-Leblond; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option On 30/11/2014 19:51, Martin Boyle wrote:
As for the link to ICANN accountability: with what we've got from Frankfurt, I think we have a reasonable idea of what we need from stream 1. We cannot tell stream 1 what answer we want, but we can tell it what issue(s) we need them to consider. Again, if we seek to engineer the whole piece, we risk simply missing the deadline and trespassing on the responsibilities of others.
Martin, This paragraph opened my eyes to a possible misunderstanding on my part of your position. As you know, I think that resolving some (not all, but some critical) ICANN accountability issues is essential to a successful NTIA transition. After Frankfurt, I had begun to lose confidence that CCWG-Stewardship shared this view. This was very disheartening to me. I have no objection to leaving ICANN accountability issues to be developed by CCWG-Accountability, so long as the essential Workstream 1 issues make it into the final ICG proposal to NTIA. But since CCWG-Accountability doesn't report to the ICG but the ICANN Board, I think it is incumbent on this working group to pick up on their output, and to ensure that ICG hears their output as part of the "naming community's proposal". Hence my request for some placeholder text in this proposal that CCWG-Accountability can fill out. Seeing that there is no such placeholder text now, and having had several of my approaches to try to achieve such text rejected in Frankfurt, I had begun to think that the rest of this group wanted to exclude anything relating to ICANN's policy-making role from the ultimate transition proposal. That worried me greatly. Your paragraph above gives me new hope that we can have a meeting of minds, so please let me check that I have understood you correctly. When you say "what we need from workstream 1", do you indeed mean that the proposal from the names community, that goes to ICG, and ultimately to NTIA, must include such proposals for ICANN accountability as CCWG-Accountability decide are an essential precondition for NTIA transition? Or to put it another way, if CCWG-Accountability decide that ICANN must be contractually bound to certain commitments to ensure that gTLD policy remains transparent, community-based bottom policy (and so forth), are you open to the possibility of having those commitments written into the requirements that the PRT is to enforce on ICANN, alongside the requirements for the IANA functions that this CCWG has defined? Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
On 30/11/2014 23:21, Martin Boyle wrote:
Malcolm, Chuck,
I think I'm with what Chuck is saying.
It has always worried me that people try to use IANA to solve problems where IANA has no power or authority. This is where I have problems - otherwise of no concern to me! - with linking to the gTLD policy and contracting process. That element - and the way the ICANN Board listens to the GNSO policy process or re-writes contract conditions or enforcement approaches - is, in my mind, firmly in stream 1 and nothing to do with the IANA oversight transition. (Of course, as I said in Frankfurt, I am an outsider to this part of the namespace, so I'm ok with being put right.)
But to make myself perfectly clear, I see a massive problem with using the IANA function to re-assess that which has been assessed in the approvals or enforcement function in ICANN, given the contractual relationship between the gTLDs and ICANN. Put another way, this would be for IANA to turn down a delegation that has met the assessment proposal (litigation risks, to say the least), or to refuse a revocation request by ICANN because of failure to meet contract conditions (if IANA is no longer run in IANA, why wouldn't ICANN sue?). Such authority to playing the maverick could have serious consequences for ccTLDs and national decisions and authority.
[snip one paragraph]
For me the red-line is that IANA operations should not introduce new policies or conditions on the grounds that it fits more nicely with a particular model or that the policy was lacking.
Hope this helps to clarify where I'm coming from.
Martin, I agree with all the above, very much so. Here is the paragraph I removed:
What I was trying to say was, where we have particular concerns for the transition that would more properly belong to stream 1 - be that telling them that there needs to be mechanisms to ensure that the integrity of the gTLD policy processes and implementation are assured, whatever - we flag this to them for attention.
I am content that proposals for dealing with those other matters be developed in Stream 1, but I think they should then be incorporated in the report of this CCWG. My main reasons are contained in a very long message in reply to Alan that will follow this reply. I would add this in response to you: by incorporating those recommendations in this CCWG's report we will have the opportunity to align them precisely to avoid the possibility they would be misconstrued as providing an opportunity to contest policy decisions through IANA-appeals processes, as we both would wish to avoid.
Cheers,
Martin
-----Original Message----- From: Gomes, Chuck [mailto:cgomes@verisign.com] Sent: 30 November 2014 22:39 To: Malcolm Hutty; Martin Boyle; Phil Corwin; Olivier Crepin-Leblond; cwg-stewardship@icann.org Subject: RE: [CWG-Stewardship] My concerns with the draft proposal and an alternative option
Malcolm,
I of course cannot speak for Martin nor am I trying to, but let me say that I think I have the same concerns as you regarding ICANN Accountability and I think we need to continue to ensure that the connection to what we are doing in the IANA CWG connects with overall ICANN accountability. I think our end product must ensure that or we will have ignored one the most unified points that the community has communicated. That said though, I don't how the PRT can enforce that as you suggest. But we can write our proposal in such a way that it will ultimately require that. We don't need to do that for this version though.
Chuck
-----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Sunday, November 30, 2014 4:23 PM To: Martin Boyle; Phil Corwin; Olivier Crepin-Leblond; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option
On 30/11/2014 19:51, Martin Boyle wrote:
As for the link to ICANN accountability: with what we've got from Frankfurt, I think we have a reasonable idea of what we need from stream 1. We cannot tell stream 1 what answer we want, but we can tell it what issue(s) we need them to consider. Again, if we seek to engineer the whole piece, we risk simply missing the deadline and trespassing on the responsibilities of others.
Martin,
This paragraph opened my eyes to a possible misunderstanding on my part of your position.
As you know, I think that resolving some (not all, but some critical) ICANN accountability issues is essential to a successful NTIA transition. After Frankfurt, I had begun to lose confidence that CCWG-Stewardship shared this view.
This was very disheartening to me. I have no objection to leaving ICANN accountability issues to be developed by CCWG-Accountability, so long as the essential Workstream 1 issues make it into the final ICG proposal to NTIA. But since CCWG-Accountability doesn't report to the ICG but the ICANN Board, I think it is incumbent on this working group to pick up on their output, and to ensure that ICG hears their output as part of the "naming community's proposal". Hence my request for some placeholder text in this proposal that CCWG-Accountability can fill out.
Seeing that there is no such placeholder text now, and having had several of my approaches to try to achieve such text rejected in Frankfurt, I had begun to think that the rest of this group wanted to exclude anything relating to ICANN's policy-making role from the ultimate transition proposal. That worried me greatly.
Your paragraph above gives me new hope that we can have a meeting of minds, so please let me check that I have understood you correctly. When you say "what we need from workstream 1", do you indeed mean that the proposal from the names community, that goes to ICG, and ultimately to NTIA, must include such proposals for ICANN accountability as CCWG-Accountability decide are an essential precondition for NTIA transition?
Or to put it another way, if CCWG-Accountability decide that ICANN must be contractually bound to certain commitments to ensure that gTLD policy remains transparent, community-based bottom policy (and so forth), are you open to the possibility of having those commitments written into the requirements that the PRT is to enforce on ICANN, alongside the requirements for the IANA functions that this CCWG has defined?
Kind Regards,
Malcolm.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Malcolm, can you be more specific on what accountability issues are critical to a successful transition, presuming that the current CWG proposal goes forward? ICANN would go from one entity, the NTIA, issuing a contract for IANA where everyone seems to think that things are working well, to another entity (Contract Co.) issuing a contract. What needs to change? The whole idea of an entity above ICANN holding the contract with the threat of granting it to someone esle seems to be sufficient to ensure that IANA is working well. Alan At 30/11/2014 04:23 PM, Malcolm Hutty wrote:
As you know, I think that resolving some (not all, but some critical) ICANN accountability issues is essential to a successful NTIA transition.
On 01/12/2014 03:50, Alan Greenberg wrote:
Malcolm, can you be more specific on what accountability issues are critical to a successful transition, presuming that the current CWG proposal goes forward?
Certainly, I'd be pleased to set them out. I'm afraid this is going to be a long message, so let me say up front that I think the best way of dealing with the issues I raise is to include in our draft placeholder text, intended to be replaced by recommendations from CCWG-Accountability Workstream 1. This should be accompanied by a statement that we believe that those recommendations must be implemented as part of any successful transition of stewardship of the DNS from NTIA to multistakeholder stewardship. The reasoning and justification for that proposal now follows, at some length I'm afraid. I believe that in relation to the DNS, a proposal to transition from the current NTIA stewardship to full community-based stewardship must address three core issues. 1. To ensure the ongoing effectiveness of IANA as an 'executing' (i.e. non-policymaking) entity, including such issues as ensuring its operational performance, adherence to procedure, and the execution of its responsibilities in a manner that preserves the operational stability and resilience of the DNS structure within its purview, and maintains their security. 2. To preserve the independence and policy-making authority of the ccTLDs, and the right of the local communities they serve to determine who should operate their respective ccTLDs, on what terms, and under what policies, all in accordance with applicable (local) law. In particular, any proposal must address how to avoid either the operational control of IANA, or the policy-making authority of ICANN for gTLDs, separately or in combination, ever becoming a means by which ICANN or its successor could encroach upon the rights of ccTLDs. 3. To ensure the the policy-making authority for gTLDs (ICANN and its successors, if such authority should ever be transferred) adopt only community-consensus policy on the basis of bottom-up multistakeholder policy-making. [Aside: what do I mean by this? Such a model sees ICANN a the vehicle by which the community develops its policy, with ultimate policy 'sovereignty' conceptually and morally lying within the community consensus as expressed through ICANN community processes; this is as opposed to a model in which ICANN seen a having a separate, corporate view on policy, where ICANN consults the community but is able and entitled to override it.] Moreover, this model must be based on enduring commitment to certain fundamental substantive principles as the paramount objectives of such policy: these principles include maintaining the open Internet, enabling interoperability and preserving universal reachability, and maintaining the security, stability and resilience of the DNS. In particular, the model must provide a means to ensure that ICANN cannot exploit its control of the DNS root through IANA, and authority over gTLDs, either to encroach upon ccTLDs nor to encroach upon other areas policy. The latter is a particular concern to me, as registrant contracts are essentially contracts of adhesion and would present an unconstrained ICANN with a ready means to regulate registrants and the end-users of their services in areas far outside the scope of DNS. Please look indulgently on the precise wording I have used above; this isn't a prepared statement. But I think the above conveys the essential concept I am trying to get to across when I say that any proposal to the NTIA that fails to set out, in a convincing manner, how each of these three core objectives should be maintained, in an enduring fashion, when NTIA is no longer able to step in to provide exogenous corrective action, ought to be rejected by the community, and by NTIA. This Cross-Community Working Group has declared that its scope is the first area and, for the avoidance of doubt, I am reasonably content with how it has gone about delivering against that objective. I don't think the current proposal is anything like ready or finished (several people have given detailed questions that deserve an answer, and I would draw particular attention to Matthew Shears' very thoughtful list of questions). I also worry that we are valuing the timetable too highly, and allowing that to compromise the thoroughness of discussions. For example, I am not at all persuaded by suggestions I have heard so far that a legal entity to act as a contract counter-party can be dispensed with - but I am conscious that the interventions on this point from ALAC reps may be driven by entirely legitimate and credible underlying concerns that can and should be addressed or mitigated in the proposal. A more measured, deliberative process might draw these underlying points out and uncover mitigations, resulting in a stronger consensus and an improved proposal. Nonetheless, as it relates to the first of the three areas I set out above, I believe this CCWG is on the right lines and I am hopeful of an end result that would deserve support with regard to this element. Even though this CCWG has stated that its scope is limited to this first area, it has chosen also to address the issues contained in the second of the three areas I set out, the preservation of the independence and authority of ccTLD operators. I do not see a valid conceptual reason for addressing this and not the third, but the ccTLD reps have managed to press their key priorities here successfully. Since I support them in this, I am content that the final proposal is likely to address this second area appropriately. The third area is the most difficult one. Since a separate CCWG on Accountability has been convened (even though it has not yet started work), all matters that even remotely touch upon its purview have been declared out of scope for this CCWG. I am content that CCWG-Accountability Workstream 1 should have the job of defining the matters in this third area, and deciding what should be done about them. However, even if so, what is the mechanism for making those findings part of the eventual transition proposal that NTIA will receive on behalf of the entire community? This raises a basic question about the duty of this CCWG and the expectations of the ICG. I see two possibilities, and really only two: i) The duty of this CCWG is to prepare that part of the transition proposal that NTIA has requested related to DNS related issues. The role of the ICG will be limited to combining this with the proposals from the numbers and protocol communities, and to establish that each of us has indeed built a community consensus for our proposals. However the document from this CCWG is intended to be complete answer in respect of the naming community, and ICG is not expecting to amend it to incorporate other DNS-related proposals relating to issues that we have chosen to ignore. ii) The duty of this CCWG is only to prepare for ICG that element of a transition proposal that relates to IANA operational functions, leaving CCWG-Accountability not only to develop those elements to relating to ICANN accountability, but also to write to ICG with its own report on Workstream 1. Under this possibility, ICG would never receive a complete proposal for DNS-related issues from anybody, and would be responsible for combining the recommendations of CCWG-Stewardship and CCWG-Accountability into a unified proposal for naming-related issues. These two possibilities seem to me to be the only ways in which ICG can present a single unified proposal to NTIA, as NTIA has requested. Moreover, I believe that the first approach is greatly to be preferred as closer to the request and expectations of ICG, and most likely to enable this CCWG and CCWG-Accountability to liaise and coordinate so as to avoid the ICG inadvertently damage the proposals made by each, as would be a risk if ICG is forced to take responsibility for integrating the two proposals, rather that us taking that responsibility for ourselves. Allow me, if you will, to elaborate on this issue of integration of our work with that of CCWG-Accountability by posing a practical question. One of the scenarios CCWG-Accountability Workstream 1 is likely to address is the case of what happens should the ICANN Board, unilaterally and without community support, decide to dissolve or systematically ignore gNSO Council, and take instructions for gTLD policy largely or exclusively from someone else (for example the GAC). What might CCWG-Accountability want to put in place to preclude such an undesirable event? I suspect that CCWG-Accountability will decide (and intend to attempt persuade it, when the time comes) that two measures need to be established to cover this scenario: i) ICANN needs to be made subject to a binding commitment of principle to the multistakeholder model for bottom-up community consensus policy. This is needed to prevent the Board being able to say in the future "We believe that it is correct and justified that DNS policy ought to be determined by governments, not by a multistakeholder process". An exogenous policy commitment would take that question of principle out of their hands, and make it possible to be decide that in rejecting that principle they are not exercising the proper authority with which the Board has been entrusted, but reneging on its commitments; and secondly ii) An effective mechanism needs to be created for enforcing the binding commitments into which the Board has entered. Assuming I am correct as to what CCWG-Accountability might want, what might constitute an effective mechanism for enforcement? I think it very likely that CCWG-Accountability will reach the same conclusion as this group (not least *because* it is the decision of this group, and there will be a desire to align with it). So if CCWG-Stewardship, notwithstanding your own current misgivings, finally settles on the PRT+ContractCo mechanism for establishing and enforcing ICANN's obligations as IANA Functions Operator, CCWG-Accountability is likely to want to employ the same mechanism for establishing and enforcing ICANN's obligations as gTLD policy maker (and had this group not already chosen to protect the ccTLDs to the satisfaction of their reps, I am sure CCWG-Accountability would also propose similar requirements to meet the same ends). (BTW, if there were such an external mechanism, it would be necessary to design it so as to avoid setting up a recursive chain of authority. This would be part of CCWG-Accountability's job in designing it; I do believe it is possible). I realise I am piling supposition upon supposition here, but they are not very strained. When CCWG-Accountability sees that CCWG-Stewardship proposes an external body to set and enforce requirements on how the IANA functions are carried out, it is surely very likely that it will want an external body to set and enforce essential requirements to maintain ICANN's fundamental accountability to the community. If I am correct and that is indeed what CCWG-Accountability ends up proposing, how would *their* proposal and *our* proposal be combined? They clearly relate to each other. Should the PRT take on both responsibility for setting the new IANA functions contract (in our current draft, newly stripped of requirements relating to ICANN qua gTLD policy-maker) and for setting and enforcing ICANN's obligations as policy-maker? NTIA combined both elements in the same contract, so this is far from unexpected. If so, CCWG-Accountability would effectively be modifying our proposal, by taking the organs we designed and extending their functions. Would that not suggest some coordination between us and CCWG-Accountability would be sensible, rather than leaving it to ICG (or even to NTIA) to try to interpret the our respective proposals and provide for their consequences? On the other hand, surely it is obvious that if CCWG-Accountability proposes a *different* contract counter-party be created to deal with ICANN accountability issues, then that might create new risks, at least in the event that that counter-party ever put ICANN's role as convenor and vehicle for building community-consensus policy out for open-bid RFP? These risks might not be limited to policy, but raise the possibility of more operational issues with (e.g.) stability - risks whose mitigation is absolutely the declared concern of this CCWG. Again, it seems some coordination between the two groups would be indicated. Do you really want to leave questions like this to be resolved by ICG alone? Surely, if the combined result is to be successful and supportable, it would be better if we coordinate with CCWG-Accountability ourselves? If you agree, then I suggest it is this CCWG's responsibility to integrate their recommendations with its own, and present ICG with a combined proposal that it might find has broad support. Hence my proposal that placeholder text be inserted today, to make this intention clear. That is a rather long-winded answer to your question, for which I apologise. I realise it is built on some suppositions and assumptions, and I have tried to be explicit about them, so that you may easily examine the assumptions I have made. Nonethless, I think it unwise for this CCWG to operate in a vacuum - it behooves us to think about how our work fits into the bigger picture, and to seek to make our output contribute towards the combined whole. So for now, I will be satisfied with placeholder text in this report, text that is intended to be replaced with recommendations from CCWG-Accountability. When they have provided such a replacement, I think it will also be our responsibility to ensure our final report is integrated into a coherent whole, such that our recommendtions and those from CCWG-Accountability could be implemented, without either undermining the other. Finally, I will call attention to one other assumption I have made, upon which all of the above rests. If anyone is of the view that NTIA transition does not raise any vital issues of accountability for ICANN in its policy-making role, and that the development of ICANN accountability mechanisms can continue through ICANN's own internal structures without any need to place them on the critical path for NTIA transition, then that person would be in disagreement with a core axiom for my argument, and everything I have written above will fall away. In response, all I can say is the community view agrees with me: when ICANN originally proposed to treat accountability as a separate issue there was an outcry in the community. This was only satisfied when CCWG-Accountability was told to create Workstream 1 specifically for issues that *had* to be addressed before or as part of NTIA transition. I take the creation and definition of that Workstream as a community consensus decision. Somehow or other, the NTIA must be presented with a proposal that includes proposals to address issues from Workstream 1. I think that is beyond dispute. For the reasons I have given, I believe it would be wise for us to include those Workstream 1 proposals in the report of this CCWG, to form part of a combined draft proposal on behalf of the naming community for transition of NTIA's role in relationship to DNS to multistakeholder stewardship. To make it clear that that is our intention, let us include placeholder text today. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Malcolm, I have read your treatise (I can call it nothing less) with some care. I see a lot about ICANN accountability. I see very little regarding ensuring that ICANN, as the contractee for the IANA function, must do to ensure that it carries out the IANA functions as specified I the contract (the current or future one). With respect to OUR task, the NTIA is withdrawing from issuing the IANA contract. They have also indicated that they will get out of the other aspects of Internet management, in particular the Verisign root-zone maintenance agreement and the oversight of ICANN as the co-signer of the Affirmation of Commitments. Neither of these two is within our scope. The latter is certainly something that will need to be considered (in my mind) by the Accountability CCWG in its Track 2. All of your concerns seem to fall in that area, and not in Track 1, those changes required for the IANA transition. We are proposing a contracting model, which you say that you support. That model allows Contract Co to take IANA out of ICANN, and assign it to some other entity unrealted to ICANN. I fail to see how ICANN accountability would be relevant once ICANN is not longer part of the IANA process. Alan At 01/12/2014 09:12 AM, Malcolm Hutty wrote:
On 01/12/2014 03:50, Alan Greenberg wrote:
Malcolm, can you be more specific on what accountability issues are critical to a successful transition, presuming that the current CWG proposal goes forward?
Certainly, I'd be pleased to set them out.
I'm afraid this is going to be a long message, so let me say up front that I think the best way of dealing with the issues I raise is to include in our draft placeholder text, intended to be replaced by recommendations from CCWG-Accountability Workstream 1. This should be accompanied by a statement that we believe that those recommendations must be implemented as part of any successful transition of stewardship of the DNS from NTIA to multistakeholder stewardship.
The reasoning and justification for that proposal now follows, at some length I'm afraid.
I believe that in relation to the DNS, a proposal to transition from the current NTIA stewardship to full community-based stewardship must address three core issues.
1. To ensure the ongoing effectiveness of IANA as an 'executing' (i.e. non-policymaking) entity, including such issues as ensuring its operational performance, adherence to procedure, and the execution of its responsibilities in a manner that preserves the operational stability and resilience of the DNS structure within its purview, and maintains their security.
2. To preserve the independence and policy-making authority of the ccTLDs, and the right of the local communities they serve to determine who should operate their respective ccTLDs, on what terms, and under what policies, all in accordance with applicable (local) law. In particular, any proposal must address how to avoid either the operational control of IANA, or the policy-making authority of ICANN for gTLDs, separately or in combination, ever becoming a means by which ICANN or its successor could encroach upon the rights of ccTLDs.
3. To ensure the the policy-making authority for gTLDs (ICANN and its successors, if such authority should ever be transferred) adopt only community-consensus policy on the basis of bottom-up multistakeholder policy-making.
[Aside: what do I mean by this?
Such a model sees ICANN a the vehicle by which the community develops its policy, with ultimate policy 'sovereignty' conceptually and morally lying within the community consensus as expressed through ICANN community processes; this is as opposed to a model in which ICANN seen a having a separate, corporate view on policy, where ICANN consults the community but is able and entitled to override it.]
Moreover, this model must be based on enduring commitment to certain fundamental substantive principles as the paramount objectives of such policy: these principles include maintaining the open Internet, enabling interoperability and preserving universal reachability, and maintaining the security, stability and resilience of the DNS. In particular, the model must provide a means to ensure that ICANN cannot exploit its control of the DNS root through IANA, and authority over gTLDs, either to encroach upon ccTLDs nor to encroach upon other areas policy. The latter is a particular concern to me, as registrant contracts are essentially contracts of adhesion and would present an unconstrained ICANN with a ready means to regulate registrants and the end-users of their services in areas far outside the scope of DNS.
Please look indulgently on the precise wording I have used above; this isn't a prepared statement. But I think the above conveys the essential concept I am trying to get to across when I say that any proposal to the NTIA that fails to set out, in a convincing manner, how each of these three core objectives should be maintained, in an enduring fashion, when NTIA is no longer able to step in to provide exogenous corrective action, ought to be rejected by the community, and by NTIA.
This Cross-Community Working Group has declared that its scope is the first area and, for the avoidance of doubt, I am reasonably content with how it has gone about delivering against that objective. I don't think the current proposal is anything like ready or finished (several people have given detailed questions that deserve an answer, and I would draw particular attention to Matthew Shears' very thoughtful list of questions). I also worry that we are valuing the timetable too highly, and allowing that to compromise the thoroughness of discussions. For example, I am not at all persuaded by suggestions I have heard so far that a legal entity to act as a contract counter-party can be dispensed with - but I am conscious that the interventions on this point from ALAC reps may be driven by entirely legitimate and credible underlying concerns that can and should be addressed or mitigated in the proposal. A more measured, deliberative process might draw these underlying points out and uncover mitigations, resulting in a stronger consensus and an improved proposal. Nonetheless, as it relates to the first of the three areas I set out above, I believe this CCWG is on the right lines and I am hopeful of an end result that would deserve support with regard to this element.
Even though this CCWG has stated that its scope is limited to this first area, it has chosen also to address the issues contained in the second of the three areas I set out, the preservation of the independence and authority of ccTLD operators. I do not see a valid conceptual reason for addressing this and not the third, but the ccTLD reps have managed to press their key priorities here successfully. Since I support them in this, I am content that the final proposal is likely to address this second area appropriately.
The third area is the most difficult one. Since a separate CCWG on Accountability has been convened (even though it has not yet started work), all matters that even remotely touch upon its purview have been declared out of scope for this CCWG.
I am content that CCWG-Accountability Workstream 1 should have the job of defining the matters in this third area, and deciding what should be done about them. However, even if so, what is the mechanism for making those findings part of the eventual transition proposal that NTIA will receive on behalf of the entire community?
This raises a basic question about the duty of this CCWG and the expectations of the ICG. I see two possibilities, and really only two:
i) The duty of this CCWG is to prepare that part of the transition proposal that NTIA has requested related to DNS related issues. The role of the ICG will be limited to combining this with the proposals from the numbers and protocol communities, and to establish that each of us has indeed built a community consensus for our proposals. However the document from this CCWG is intended to be complete answer in respect of the naming community, and ICG is not expecting to amend it to incorporate other DNS-related proposals relating to issues that we have chosen to ignore.
ii) The duty of this CCWG is only to prepare for ICG that element of a transition proposal that relates to IANA operational functions, leaving CCWG-Accountability not only to develop those elements to relating to ICANN accountability, but also to write to ICG with its own report on Workstream 1. Under this possibility, ICG would never receive a complete proposal for DNS-related issues from anybody, and would be responsible for combining the recommendations of CCWG-Stewardship and CCWG-Accountability into a unified proposal for naming-related issues.
These two possibilities seem to me to be the only ways in which ICG can present a single unified proposal to NTIA, as NTIA has requested. Moreover, I believe that the first approach is greatly to be preferred as closer to the request and expectations of ICG, and most likely to enable this CCWG and CCWG-Accountability to liaise and coordinate so as to avoid the ICG inadvertently damage the proposals made by each, as would be a risk if ICG is forced to take responsibility for integrating the two proposals, rather that us taking that responsibility for ourselves.
Allow me, if you will, to elaborate on this issue of integration of our work with that of CCWG-Accountability by posing a practical question.
One of the scenarios CCWG-Accountability Workstream 1 is likely to address is the case of what happens should the ICANN Board, unilaterally and without community support, decide to dissolve or systematically ignore gNSO Council, and take instructions for gTLD policy largely or exclusively from someone else (for example the GAC).
What might CCWG-Accountability want to put in place to preclude such an undesirable event?
I suspect that CCWG-Accountability will decide (and intend to attempt persuade it, when the time comes) that two measures need to be established to cover this scenario:
i) ICANN needs to be made subject to a binding commitment of principle to the multistakeholder model for bottom-up community consensus policy. This is needed to prevent the Board being able to say in the future "We believe that it is correct and justified that DNS policy ought to be determined by governments, not by a multistakeholder process". An exogenous policy commitment would take that question of principle out of their hands, and make it possible to be decide that in rejecting that principle they are not exercising the proper authority with which the Board has been entrusted, but reneging on its commitments;
and secondly
ii) An effective mechanism needs to be created for enforcing the binding commitments into which the Board has entered.
Assuming I am correct as to what CCWG-Accountability might want, what might constitute an effective mechanism for enforcement? I think it very likely that CCWG-Accountability will reach the same conclusion as this group (not least *because* it is the decision of this group, and there will be a desire to align with it).
So if CCWG-Stewardship, notwithstanding your own current misgivings, finally settles on the PRT+ContractCo mechanism for establishing and enforcing ICANN's obligations as IANA Functions Operator, CCWG-Accountability is likely to want to employ the same mechanism for establishing and enforcing ICANN's obligations as gTLD policy maker (and had this group not already chosen to protect the ccTLDs to the satisfaction of their reps, I am sure CCWG-Accountability would also propose similar requirements to meet the same ends).
(BTW, if there were such an external mechanism, it would be necessary to design it so as to avoid setting up a recursive chain of authority. This would be part of CCWG-Accountability's job in designing it; I do believe it is possible).
I realise I am piling supposition upon supposition here, but they are not very strained. When CCWG-Accountability sees that CCWG-Stewardship proposes an external body to set and enforce requirements on how the IANA functions are carried out, it is surely very likely that it will want an external body to set and enforce essential requirements to maintain ICANN's fundamental accountability to the community.
If I am correct and that is indeed what CCWG-Accountability ends up proposing, how would *their* proposal and *our* proposal be combined? They clearly relate to each other.
Should the PRT take on both responsibility for setting the new IANA functions contract (in our current draft, newly stripped of requirements relating to ICANN qua gTLD policy-maker) and for setting and enforcing ICANN's obligations as policy-maker? NTIA combined both elements in the same contract, so this is far from unexpected. If so, CCWG-Accountability would effectively be modifying our proposal, by taking the organs we designed and extending their functions. Would that not suggest some coordination between us and CCWG-Accountability would be sensible, rather than leaving it to ICG (or even to NTIA) to try to interpret the our respective proposals and provide for their consequences?
On the other hand, surely it is obvious that if CCWG-Accountability proposes a *different* contract counter-party be created to deal with ICANN accountability issues, then that might create new risks, at least in the event that that counter-party ever put ICANN's role as convenor and vehicle for building community-consensus policy out for open-bid RFP? These risks might not be limited to policy, but raise the possibility of more operational issues with (e.g.) stability - risks whose mitigation is absolutely the declared concern of this CCWG. Again, it seems some coordination between the two groups would be indicated.
Do you really want to leave questions like this to be resolved by ICG alone? Surely, if the combined result is to be successful and supportable, it would be better if we coordinate with CCWG-Accountability ourselves?
If you agree, then I suggest it is this CCWG's responsibility to integrate their recommendations with its own, and present ICG with a combined proposal that it might find has broad support. Hence my proposal that placeholder text be inserted today, to make this intention clear.
That is a rather long-winded answer to your question, for which I apologise. I realise it is built on some suppositions and assumptions, and I have tried to be explicit about them, so that you may easily examine the assumptions I have made. Nonethless, I think it unwise for this CCWG to operate in a vacuum - it behooves us to think about how our work fits into the bigger picture, and to seek to make our output contribute towards the combined whole.
So for now, I will be satisfied with placeholder text in this report, text that is intended to be replaced with recommendations from CCWG-Accountability. When they have provided such a replacement, I think it will also be our responsibility to ensure our final report is integrated into a coherent whole, such that our recommendtions and those from CCWG-Accountability could be implemented, without either undermining the other.
Finally, I will call attention to one other assumption I have made, upon which all of the above rests. If anyone is of the view that NTIA transition does not raise any vital issues of accountability for ICANN in its policy-making role, and that the development of ICANN accountability mechanisms can continue through ICANN's own internal structures without any need to place them on the critical path for NTIA transition, then that person would be in disagreement with a core axiom for my argument, and everything I have written above will fall away. In response, all I can say is the community view agrees with me: when ICANN originally proposed to treat accountability as a separate issue there was an outcry in the community. This was only satisfied when CCWG-Accountability was told to create Workstream 1 specifically for issues that *had* to be addressed before or as part of NTIA transition. I take the creation and definition of that Workstream as a community consensus decision. Somehow or other, the NTIA must be presented with a proposal that includes proposals to address issues from Workstream 1. I think that is beyond dispute.
For the reasons I have given, I believe it would be wise for us to include those Workstream 1 proposals in the report of this CCWG, to form part of a combined draft proposal on behalf of the naming community for transition of NTIA's role in relationship to DNS to multistakeholder stewardship.
To make it clear that that is our intention, let us include placeholder text today.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
A response to Alan regarding Malcolm's "treatise":
-----Original Message----- I see a lot about ICANN accountability. I see very little regarding ensuring that ICANN, as the contractee for the IANA function, must do to ensure that it carries out the IANA functions as specified I the contract (the current or future one).
Not correct. See Malcolm's first core issue: "1. To ensure the ongoing effectiveness of IANA as an 'executing' (i.e. non-policymaking) entity, including such issues as ensuring its operational performance, adherence to procedure, and the execution of its responsibilities in a manner that preserves the operational stability and resilience of the DNS structure within its purview, and maintains their security."
With respect to OUR task, the NTIA is withdrawing from issuing the IANA contract. They have also indicated that they will get out of the other aspects of Internet management, in particular the Verisign root- zone maintenance agreement and the oversight of ICANN as the co- signer of the Affirmation of Commitments. Neither of these two is within our scope. The latter is certainly something that will need to be considered (in my mind) by the Accountability CCWG in its Track 2. All of your concerns seem to fall in that area, and not in Track 1, those changes required for the IANA transition.
I agree that Malcolm's 2nd and 3rd "core issues" largely fall into the remit of the Accountability CCWG. However, whether they are part of Track 1 or Track 2 (i.e., need to be done before or after the IANA transition, respectively) remains open. If we have a contracted IANA that is separable from ICANN, periodically renewed, and if the MRT is authorized to make the kind of mission creep about which Malcolm is justifiably concerned the basis for non-renewal, then I think our transition plan will allay most if not all of the need for Track 1 changes. On the other hand if we have a non-contracted IANA, imperfectly separable or not separable, or one not regularly or periodically renewed, then virtually all of what Malcom talks about must go into Track 1, as far as I am concerned. --MM
On 02/12/2014 16:55, Milton L Mueller wrote:
If we have a contracted IANA that is separable from ICANN, periodically renewed, and if the MRT is authorized to make the kind of mission creep about which Malcolm is justifiably concerned the basis for non-renewal, then I think our transition plan will allay most if not all of the need for Track 1 changes.
I agree, as you say, *provided* that the PRT is indeed authorised to make that kind of mission creep the basis for non-renewal. Is it this group's intention that the PRT be so authorised?
On the other hand if we have a non-contracted IANA, imperfectly separable or not separable, or one not regularly or periodically renewed, then virtually all of what Malcom talks about must go into Track 1, as far as I am concerned.
And surely the recommendations from Track 1, being by definition things that must be addressed as part of NTIA transition rather than by ICANN afterwards, must somehow make their way into the transition proposal presented to the NTIA. How is that to be achieved, if not by this group making the linkage? -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
At 02/12/2014 11:55 AM, Milton L Mueller wrote:
A response to Alan regarding Malcolm's "treatise":
-----Original Message----- I see a lot about ICANN accountability. I see very little regarding ensuring that ICANN, as the contractee for the IANA function, must do to ensure that it carries out the IANA functions as specified I the contract (the current or future one).
Not correct. See Malcolm's first core issue: "1. To ensure the ongoing effectiveness of IANA as an 'executing' (i.e. non-policymaking) entity, including such issues as ensuring its operational performance, adherence to procedure, and the execution of its responsibilities in a manner that preserves the operational stability and resilience of the DNS structure within its purview, and maintains their security."
I am in complete agreement on the need for all this, but I asked what accountability measures need to be in place to ensure it. Apparently it is working now and presumably most or all of this will be in the contractual terms that ICANN will need to adhere to.
With respect to OUR task, the NTIA is withdrawing from issuing the IANA contract. They have also indicated that they will get out of the other aspects of Internet management, in particular the Verisign root- zone maintenance agreement and the oversight of ICANN as the co- signer of the Affirmation of Commitments. Neither of these two is within our scope. The latter is certainly something that will need to be considered (in my mind) by the Accountability CCWG in its Track 2. All of your concerns seem to fall in that area, and not in Track 1, those changes required for the IANA transition.
I agree that Malcolm's 2nd and 3rd "core issues" largely fall into the remit of the Accountability CCWG. However, whether they are part of Track 1 or Track 2 (i.e., need to be done before or after the IANA transition, respectively) remains open.
If we have a contracted IANA that is separable from ICANN, periodically renewed, and if the MRT is authorized to make the kind of mission creep about which Malcolm is justifiably concerned the basis for non-renewal, then I think our transition plan will allay most if not all of the need for Track 1 changes.
On the other hand if we have a non-contracted IANA, imperfectly separable or not separable, or one not regularly or periodically renewed, then virtually all of what Malcom talks about must go into Track 1, as far as I am concerned.
The premise in my original question to Malcolm was "presuming that the current CWG proposal goes forward". Alan
--MM
Alan, Delegation, re-delegation or un-delegation of TLDs needs to be done in compliance with approved policy. So, even though the IANA functions operator has nothing to do with policy development or policy implementation, it is essential that policy development and policy implementation be done properly. Therefore it seems to me that accountability of policy development and policy implementation are very much in scope for the IANA CWG. Moreover the charter allows for that. I think your view of Accountability CCWG Track 1 is much too narrow. Chuck -----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Tuesday, December 02, 2014 11:25 AM To: Malcolm Hutty; Martin Boyle; Phil Corwin; Olivier Crepin-Leblond; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option Malcolm, I have read your treatise (I can call it nothing less) with some care. I see a lot about ICANN accountability. I see very little regarding ensuring that ICANN, as the contractee for the IANA function, must do to ensure that it carries out the IANA functions as specified I the contract (the current or future one). With respect to OUR task, the NTIA is withdrawing from issuing the IANA contract. They have also indicated that they will get out of the other aspects of Internet management, in particular the Verisign root-zone maintenance agreement and the oversight of ICANN as the co-signer of the Affirmation of Commitments. Neither of these two is within our scope. The latter is certainly something that will need to be considered (in my mind) by the Accountability CCWG in its Track 2. All of your concerns seem to fall in that area, and not in Track 1, those changes required for the IANA transition. We are proposing a contracting model, which you say that you support. That model allows Contract Co to take IANA out of ICANN, and assign it to some other entity unrealted to ICANN. I fail to see how ICANN accountability would be relevant once ICANN is not longer part of the IANA process. Alan At 01/12/2014 09:12 AM, Malcolm Hutty wrote:
On 01/12/2014 03:50, Alan Greenberg wrote:
Malcolm, can you be more specific on what accountability issues are critical to a successful transition, presuming that the current CWG proposal goes forward?
Certainly, I'd be pleased to set them out.
I'm afraid this is going to be a long message, so let me say up front that I think the best way of dealing with the issues I raise is to include in our draft placeholder text, intended to be replaced by recommendations from CCWG-Accountability Workstream 1. This should be accompanied by a statement that we believe that those recommendations must be implemented as part of any successful transition of stewardship of the DNS from NTIA to multistakeholder stewardship.
The reasoning and justification for that proposal now follows, at some length I'm afraid.
I believe that in relation to the DNS, a proposal to transition from the current NTIA stewardship to full community-based stewardship must address three core issues.
1. To ensure the ongoing effectiveness of IANA as an 'executing' (i.e. non-policymaking) entity, including such issues as ensuring its operational performance, adherence to procedure, and the execution of its responsibilities in a manner that preserves the operational stability and resilience of the DNS structure within its purview, and maintains their security.
2. To preserve the independence and policy-making authority of the ccTLDs, and the right of the local communities they serve to determine who should operate their respective ccTLDs, on what terms, and under what policies, all in accordance with applicable (local) law. In particular, any proposal must address how to avoid either the operational control of IANA, or the policy-making authority of ICANN for gTLDs, separately or in combination, ever becoming a means by which ICANN or its successor could encroach upon the rights of ccTLDs.
3. To ensure the the policy-making authority for gTLDs (ICANN and its successors, if such authority should ever be transferred) adopt only community-consensus policy on the basis of bottom-up multistakeholder policy-making.
[Aside: what do I mean by this?
Such a model sees ICANN a the vehicle by which the community develops its policy, with ultimate policy 'sovereignty' conceptually and morally lying within the community consensus as expressed through ICANN community processes; this is as opposed to a model in which ICANN seen a having a separate, corporate view on policy, where ICANN consults the community but is able and entitled to override it.]
Moreover, this model must be based on enduring commitment to certain fundamental substantive principles as the paramount objectives of such policy: these principles include maintaining the open Internet, enabling interoperability and preserving universal reachability, and maintaining the security, stability and resilience of the DNS. In particular, the model must provide a means to ensure that ICANN cannot exploit its control of the DNS root through IANA, and authority over gTLDs, either to encroach upon ccTLDs nor to encroach upon other areas policy. The latter is a particular concern to me, as registrant contracts are essentially contracts of adhesion and would present an unconstrained ICANN with a ready means to regulate registrants and the end-users of their services in areas far outside the scope of DNS.
Please look indulgently on the precise wording I have used above; this isn't a prepared statement. But I think the above conveys the essential concept I am trying to get to across when I say that any proposal to the NTIA that fails to set out, in a convincing manner, how each of these three core objectives should be maintained, in an enduring fashion, when NTIA is no longer able to step in to provide exogenous corrective action, ought to be rejected by the community, and by NTIA.
This Cross-Community Working Group has declared that its scope is the first area and, for the avoidance of doubt, I am reasonably content with how it has gone about delivering against that objective. I don't think the current proposal is anything like ready or finished (several people have given detailed questions that deserve an answer, and I would draw particular attention to Matthew Shears' very thoughtful list of questions). I also worry that we are valuing the timetable too highly, and allowing that to compromise the thoroughness of discussions. For example, I am not at all persuaded by suggestions I have heard so far that a legal entity to act as a contract counter-party can be dispensed with - but I am conscious that the interventions on this point from ALAC reps may be driven by entirely legitimate and credible underlying concerns that can and should be addressed or mitigated in the proposal. A more measured, deliberative process might draw these underlying points out and uncover mitigations, resulting in a stronger consensus and an improved proposal. Nonetheless, as it relates to the first of the three areas I set out above, I believe this CCWG is on the right lines and I am hopeful of an end result that would deserve support with regard to this element.
Even though this CCWG has stated that its scope is limited to this first area, it has chosen also to address the issues contained in the second of the three areas I set out, the preservation of the independence and authority of ccTLD operators. I do not see a valid conceptual reason for addressing this and not the third, but the ccTLD reps have managed to press their key priorities here successfully. Since I support them in this, I am content that the final proposal is likely to address this second area appropriately.
The third area is the most difficult one. Since a separate CCWG on Accountability has been convened (even though it has not yet started work), all matters that even remotely touch upon its purview have been declared out of scope for this CCWG.
I am content that CCWG-Accountability Workstream 1 should have the job of defining the matters in this third area, and deciding what should be done about them. However, even if so, what is the mechanism for making those findings part of the eventual transition proposal that NTIA will receive on behalf of the entire community?
This raises a basic question about the duty of this CCWG and the expectations of the ICG. I see two possibilities, and really only two:
i) The duty of this CCWG is to prepare that part of the transition proposal that NTIA has requested related to DNS related issues. The role of the ICG will be limited to combining this with the proposals from the numbers and protocol communities, and to establish that each of us has indeed built a community consensus for our proposals. However the document from this CCWG is intended to be complete answer in respect of the naming community, and ICG is not expecting to amend it to incorporate other DNS-related proposals relating to issues that we have chosen to ignore.
ii) The duty of this CCWG is only to prepare for ICG that element of a transition proposal that relates to IANA operational functions, leaving CCWG-Accountability not only to develop those elements to relating to ICANN accountability, but also to write to ICG with its own report on Workstream 1. Under this possibility, ICG would never receive a complete proposal for DNS-related issues from anybody, and would be responsible for combining the recommendations of CCWG-Stewardship and CCWG-Accountability into a unified proposal for naming-related issues.
These two possibilities seem to me to be the only ways in which ICG can present a single unified proposal to NTIA, as NTIA has requested. Moreover, I believe that the first approach is greatly to be preferred as closer to the request and expectations of ICG, and most likely to enable this CCWG and CCWG-Accountability to liaise and coordinate so as to avoid the ICG inadvertently damage the proposals made by each, as would be a risk if ICG is forced to take responsibility for integrating the two proposals, rather that us taking that responsibility for ourselves.
Allow me, if you will, to elaborate on this issue of integration of our work with that of CCWG-Accountability by posing a practical question.
One of the scenarios CCWG-Accountability Workstream 1 is likely to address is the case of what happens should the ICANN Board, unilaterally and without community support, decide to dissolve or systematically ignore gNSO Council, and take instructions for gTLD policy largely or exclusively from someone else (for example the GAC).
What might CCWG-Accountability want to put in place to preclude such an undesirable event?
I suspect that CCWG-Accountability will decide (and intend to attempt persuade it, when the time comes) that two measures need to be established to cover this scenario:
i) ICANN needs to be made subject to a binding commitment of principle to the multistakeholder model for bottom-up community consensus policy. This is needed to prevent the Board being able to say in the future "We believe that it is correct and justified that DNS policy ought to be determined by governments, not by a multistakeholder process". An exogenous policy commitment would take that question of principle out of their hands, and make it possible to be decide that in rejecting that principle they are not exercising the proper authority with which the Board has been entrusted, but reneging on its commitments;
and secondly
ii) An effective mechanism needs to be created for enforcing the binding commitments into which the Board has entered.
Assuming I am correct as to what CCWG-Accountability might want, what might constitute an effective mechanism for enforcement? I think it very likely that CCWG-Accountability will reach the same conclusion as this group (not least *because* it is the decision of this group, and there will be a desire to align with it).
So if CCWG-Stewardship, notwithstanding your own current misgivings, finally settles on the PRT+ContractCo mechanism for establishing and enforcing ICANN's obligations as IANA Functions Operator, CCWG-Accountability is likely to want to employ the same mechanism for establishing and enforcing ICANN's obligations as gTLD policy maker (and had this group not already chosen to protect the ccTLDs to the satisfaction of their reps, I am sure CCWG-Accountability would also propose similar requirements to meet the same ends).
(BTW, if there were such an external mechanism, it would be necessary to design it so as to avoid setting up a recursive chain of authority. This would be part of CCWG-Accountability's job in designing it; I do believe it is possible).
I realise I am piling supposition upon supposition here, but they are not very strained. When CCWG-Accountability sees that CCWG-Stewardship proposes an external body to set and enforce requirements on how the IANA functions are carried out, it is surely very likely that it will want an external body to set and enforce essential requirements to maintain ICANN's fundamental accountability to the community.
If I am correct and that is indeed what CCWG-Accountability ends up proposing, how would *their* proposal and *our* proposal be combined? They clearly relate to each other.
Should the PRT take on both responsibility for setting the new IANA functions contract (in our current draft, newly stripped of requirements relating to ICANN qua gTLD policy-maker) and for setting and enforcing ICANN's obligations as policy-maker? NTIA combined both elements in the same contract, so this is far from unexpected. If so, CCWG-Accountability would effectively be modifying our proposal, by taking the organs we designed and extending their functions. Would that not suggest some coordination between us and CCWG-Accountability would be sensible, rather than leaving it to ICG (or even to NTIA) to try to interpret the our respective proposals and provide for their consequences?
On the other hand, surely it is obvious that if CCWG-Accountability proposes a *different* contract counter-party be created to deal with ICANN accountability issues, then that might create new risks, at least in the event that that counter-party ever put ICANN's role as convenor and vehicle for building community-consensus policy out for open-bid RFP? These risks might not be limited to policy, but raise the possibility of more operational issues with (e.g.) stability - risks whose mitigation is absolutely the declared concern of this CCWG. Again, it seems some coordination between the two groups would be indicated.
Do you really want to leave questions like this to be resolved by ICG alone? Surely, if the combined result is to be successful and supportable, it would be better if we coordinate with CCWG-Accountability ourselves?
If you agree, then I suggest it is this CCWG's responsibility to integrate their recommendations with its own, and present ICG with a combined proposal that it might find has broad support. Hence my proposal that placeholder text be inserted today, to make this intention clear.
That is a rather long-winded answer to your question, for which I apologise. I realise it is built on some suppositions and assumptions, and I have tried to be explicit about them, so that you may easily examine the assumptions I have made. Nonethless, I think it unwise for this CCWG to operate in a vacuum - it behooves us to think about how our work fits into the bigger picture, and to seek to make our output contribute towards the combined whole.
So for now, I will be satisfied with placeholder text in this report, text that is intended to be replaced with recommendations from CCWG-Accountability. When they have provided such a replacement, I think it will also be our responsibility to ensure our final report is integrated into a coherent whole, such that our recommendtions and those from CCWG-Accountability could be implemented, without either undermining the other.
Finally, I will call attention to one other assumption I have made, upon which all of the above rests. If anyone is of the view that NTIA transition does not raise any vital issues of accountability for ICANN in its policy-making role, and that the development of ICANN accountability mechanisms can continue through ICANN's own internal structures without any need to place them on the critical path for NTIA transition, then that person would be in disagreement with a core axiom for my argument, and everything I have written above will fall away. In response, all I can say is the community view agrees with me: when ICANN originally proposed to treat accountability as a separate issue there was an outcry in the community. This was only satisfied when CCWG-Accountability was told to create Workstream 1 specifically for issues that *had* to be addressed before or as part of NTIA transition. I take the creation and definition of that Workstream as a community consensus decision. Somehow or other, the NTIA must be presented with a proposal that includes proposals to address issues from Workstream 1. I think that is beyond dispute.
For the reasons I have given, I believe it would be wise for us to include those Workstream 1 proposals in the report of this CCWG, to form part of a combined draft proposal on behalf of the naming community for transition of NTIA's role in relationship to DNS to multistakeholder stewardship.
To make it clear that that is our intention, let us include placeholder text today.
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Malcolm, Thanks for taking the time to write this. I think I am on the same page as you on most of what you say. First let me say that I like what you said here: " Such a model sees ICANN a the vehicle by which the community develops its policy, with ultimate policy 'sovereignty' conceptually and morally lying within the community consensus as expressed through ICANN community processes; this is as opposed to a model in which ICANN seen a having a separate, corporate view on policy, where ICANN consults the community but is able and entitled to override it." Unfortunately we have seen too much of the latter in the last couple of years. I also agree with you on this: " I also worry that we are valuing the timetable too highly, and allowing that to compromise the thoroughness of discussions." I personally believe that we need to work diligently to try to meet the target dates, but if we get to a point that that means compromising, then we need to adjust our targets. We need to get this right. And I think most people agree with that. But I don't completely agree with you on this: " The third area is the most difficult one. Since a separate CCWG on Accountability has been convened (even though it has not yet started work), all matters that even remotely touch upon its purview have been declared out of scope for this CCWG." I definitely do not think that this is the case. As a member of the charter DT, I know for a fact that we tried to ensure that accountability was not an issue just for the ICANN accountability work. And I do think that we need to be very careful about assigning issues too quickly to track two of the CCWG to quickly. I also support this: " coordination between us and CCWG-Accountability would be sensible". In fact our charter calls for that. Finally you ask a good question: " Do you really want to leave questions like this to be resolved by ICG alone?" First of all, I am not sure it is the job of the ICG to resolve issues between the two WGs. More importantly, I also believe that it is our job to do the resolving to extent that we can. That is why I think you may be right that we may need to put a place holder in our proposal to be filled once the Accountability CCWG finishes its work sufficiently for our needs. I hadn't thought of that before but think it might be needed. It's certainly is worth serious consideration. Chuck -----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Monday, December 01, 2014 9:12 AM To: Alan Greenberg; Martin Boyle; Phil Corwin; Olivier Crepin-Leblond; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option On 01/12/2014 03:50, Alan Greenberg wrote:
Malcolm, can you be more specific on what accountability issues are critical to a successful transition, presuming that the current CWG proposal goes forward?
Certainly, I'd be pleased to set them out. I'm afraid this is going to be a long message, so let me say up front that I think the best way of dealing with the issues I raise is to include in our draft placeholder text, intended to be replaced by recommendations from CCWG-Accountability Workstream 1. This should be accompanied by a statement that we believe that those recommendations must be implemented as part of any successful transition of stewardship of the DNS from NTIA to multistakeholder stewardship. The reasoning and justification for that proposal now follows, at some length I'm afraid. I believe that in relation to the DNS, a proposal to transition from the current NTIA stewardship to full community-based stewardship must address three core issues. 1. To ensure the ongoing effectiveness of IANA as an 'executing' (i.e. non-policymaking) entity, including such issues as ensuring its operational performance, adherence to procedure, and the execution of its responsibilities in a manner that preserves the operational stability and resilience of the DNS structure within its purview, and maintains their security. 2. To preserve the independence and policy-making authority of the ccTLDs, and the right of the local communities they serve to determine who should operate their respective ccTLDs, on what terms, and under what policies, all in accordance with applicable (local) law. In particular, any proposal must address how to avoid either the operational control of IANA, or the policy-making authority of ICANN for gTLDs, separately or in combination, ever becoming a means by which ICANN or its successor could encroach upon the rights of ccTLDs. 3. To ensure the the policy-making authority for gTLDs (ICANN and its successors, if such authority should ever be transferred) adopt only community-consensus policy on the basis of bottom-up multistakeholder policy-making. [Aside: what do I mean by this? Such a model sees ICANN a the vehicle by which the community develops its policy, with ultimate policy 'sovereignty' conceptually and morally lying within the community consensus as expressed through ICANN community processes; this is as opposed to a model in which ICANN seen a having a separate, corporate view on policy, where ICANN consults the community but is able and entitled to override it.] Moreover, this model must be based on enduring commitment to certain fundamental substantive principles as the paramount objectives of such policy: these principles include maintaining the open Internet, enabling interoperability and preserving universal reachability, and maintaining the security, stability and resilience of the DNS. In particular, the model must provide a means to ensure that ICANN cannot exploit its control of the DNS root through IANA, and authority over gTLDs, either to encroach upon ccTLDs nor to encroach upon other areas policy. The latter is a particular concern to me, as registrant contracts are essentially contracts of adhesion and would present an unconstrained ICANN with a ready means to regulate registrants and the end-users of their services in areas far outside the scope of DNS. Please look indulgently on the precise wording I have used above; this isn't a prepared statement. But I think the above conveys the essential concept I am trying to get to across when I say that any proposal to the NTIA that fails to set out, in a convincing manner, how each of these three core objectives should be maintained, in an enduring fashion, when NTIA is no longer able to step in to provide exogenous corrective action, ought to be rejected by the community, and by NTIA. This Cross-Community Working Group has declared that its scope is the first area and, for the avoidance of doubt, I am reasonably content with how it has gone about delivering against that objective. I don't think the current proposal is anything like ready or finished (several people have given detailed questions that deserve an answer, and I would draw particular attention to Matthew Shears' very thoughtful list of questions). I also worry that we are valuing the timetable too highly, and allowing that to compromise the thoroughness of discussions. For example, I am not at all persuaded by suggestions I have heard so far that a legal entity to act as a contract counter-party can be dispensed with - but I am conscious that the interventions on this point from ALAC reps may be driven by entirely legitimate and credible underlying concerns that can and should be addressed or mitigated in the proposal. A more measured, deliberative process might draw these underlying points out and uncover mitigations, resulting in a stronger consensus and an improved proposal. Nonetheless, as it relates to the first of the three areas I set out above, I believe this CCWG is on the right lines and I am hopeful of an end result that would deserve support with regard to this element. Even though this CCWG has stated that its scope is limited to this first area, it has chosen also to address the issues contained in the second of the three areas I set out, the preservation of the independence and authority of ccTLD operators. I do not see a valid conceptual reason for addressing this and not the third, but the ccTLD reps have managed to press their key priorities here successfully. Since I support them in this, I am content that the final proposal is likely to address this second area appropriately. The third area is the most difficult one. Since a separate CCWG on Accountability has been convened (even though it has not yet started work), all matters that even remotely touch upon its purview have been declared out of scope for this CCWG. I am content that CCWG-Accountability Workstream 1 should have the job of defining the matters in this third area, and deciding what should be done about them. However, even if so, what is the mechanism for making those findings part of the eventual transition proposal that NTIA will receive on behalf of the entire community? This raises a basic question about the duty of this CCWG and the expectations of the ICG. I see two possibilities, and really only two: i) The duty of this CCWG is to prepare that part of the transition proposal that NTIA has requested related to DNS related issues. The role of the ICG will be limited to combining this with the proposals from the numbers and protocol communities, and to establish that each of us has indeed built a community consensus for our proposals. However the document from this CCWG is intended to be complete answer in respect of the naming community, and ICG is not expecting to amend it to incorporate other DNS-related proposals relating to issues that we have chosen to ignore. ii) The duty of this CCWG is only to prepare for ICG that element of a transition proposal that relates to IANA operational functions, leaving CCWG-Accountability not only to develop those elements to relating to ICANN accountability, but also to write to ICG with its own report on Workstream 1. Under this possibility, ICG would never receive a complete proposal for DNS-related issues from anybody, and would be responsible for combining the recommendations of CCWG-Stewardship and CCWG-Accountability into a unified proposal for naming-related issues. These two possibilities seem to me to be the only ways in which ICG can present a single unified proposal to NTIA, as NTIA has requested. Moreover, I believe that the first approach is greatly to be preferred as closer to the request and expectations of ICG, and most likely to enable this CCWG and CCWG-Accountability to liaise and coordinate so as to avoid the ICG inadvertently damage the proposals made by each, as would be a risk if ICG is forced to take responsibility for integrating the two proposals, rather that us taking that responsibility for ourselves. Allow me, if you will, to elaborate on this issue of integration of our work with that of CCWG-Accountability by posing a practical question. One of the scenarios CCWG-Accountability Workstream 1 is likely to address is the case of what happens should the ICANN Board, unilaterally and without community support, decide to dissolve or systematically ignore gNSO Council, and take instructions for gTLD policy largely or exclusively from someone else (for example the GAC). What might CCWG-Accountability want to put in place to preclude such an undesirable event? I suspect that CCWG-Accountability will decide (and intend to attempt persuade it, when the time comes) that two measures need to be established to cover this scenario: i) ICANN needs to be made subject to a binding commitment of principle to the multistakeholder model for bottom-up community consensus policy. This is needed to prevent the Board being able to say in the future "We believe that it is correct and justified that DNS policy ought to be determined by governments, not by a multistakeholder process". An exogenous policy commitment would take that question of principle out of their hands, and make it possible to be decide that in rejecting that principle they are not exercising the proper authority with which the Board has been entrusted, but reneging on its commitments; and secondly ii) An effective mechanism needs to be created for enforcing the binding commitments into which the Board has entered. Assuming I am correct as to what CCWG-Accountability might want, what might constitute an effective mechanism for enforcement? I think it very likely that CCWG-Accountability will reach the same conclusion as this group (not least *because* it is the decision of this group, and there will be a desire to align with it). So if CCWG-Stewardship, notwithstanding your own current misgivings, finally settles on the PRT+ContractCo mechanism for establishing and enforcing ICANN's obligations as IANA Functions Operator, CCWG-Accountability is likely to want to employ the same mechanism for establishing and enforcing ICANN's obligations as gTLD policy maker (and had this group not already chosen to protect the ccTLDs to the satisfaction of their reps, I am sure CCWG-Accountability would also propose similar requirements to meet the same ends). (BTW, if there were such an external mechanism, it would be necessary to design it so as to avoid setting up a recursive chain of authority. This would be part of CCWG-Accountability's job in designing it; I do believe it is possible). I realise I am piling supposition upon supposition here, but they are not very strained. When CCWG-Accountability sees that CCWG-Stewardship proposes an external body to set and enforce requirements on how the IANA functions are carried out, it is surely very likely that it will want an external body to set and enforce essential requirements to maintain ICANN's fundamental accountability to the community. If I am correct and that is indeed what CCWG-Accountability ends up proposing, how would *their* proposal and *our* proposal be combined? They clearly relate to each other. Should the PRT take on both responsibility for setting the new IANA functions contract (in our current draft, newly stripped of requirements relating to ICANN qua gTLD policy-maker) and for setting and enforcing ICANN's obligations as policy-maker? NTIA combined both elements in the same contract, so this is far from unexpected. If so, CCWG-Accountability would effectively be modifying our proposal, by taking the organs we designed and extending their functions. Would that not suggest some coordination between us and CCWG-Accountability would be sensible, rather than leaving it to ICG (or even to NTIA) to try to interpret the our respective proposals and provide for their consequences? On the other hand, surely it is obvious that if CCWG-Accountability proposes a *different* contract counter-party be created to deal with ICANN accountability issues, then that might create new risks, at least in the event that that counter-party ever put ICANN's role as convenor and vehicle for building community-consensus policy out for open-bid RFP? These risks might not be limited to policy, but raise the possibility of more operational issues with (e.g.) stability - risks whose mitigation is absolutely the declared concern of this CCWG. Again, it seems some coordination between the two groups would be indicated. Do you really want to leave questions like this to be resolved by ICG alone? Surely, if the combined result is to be successful and supportable, it would be better if we coordinate with CCWG-Accountability ourselves? If you agree, then I suggest it is this CCWG's responsibility to integrate their recommendations with its own, and present ICG with a combined proposal that it might find has broad support. Hence my proposal that placeholder text be inserted today, to make this intention clear. That is a rather long-winded answer to your question, for which I apologise. I realise it is built on some suppositions and assumptions, and I have tried to be explicit about them, so that you may easily examine the assumptions I have made. Nonethless, I think it unwise for this CCWG to operate in a vacuum - it behooves us to think about how our work fits into the bigger picture, and to seek to make our output contribute towards the combined whole. So for now, I will be satisfied with placeholder text in this report, text that is intended to be replaced with recommendations from CCWG-Accountability. When they have provided such a replacement, I think it will also be our responsibility to ensure our final report is integrated into a coherent whole, such that our recommendtions and those from CCWG-Accountability could be implemented, without either undermining the other. Finally, I will call attention to one other assumption I have made, upon which all of the above rests. If anyone is of the view that NTIA transition does not raise any vital issues of accountability for ICANN in its policy-making role, and that the development of ICANN accountability mechanisms can continue through ICANN's own internal structures without any need to place them on the critical path for NTIA transition, then that person would be in disagreement with a core axiom for my argument, and everything I have written above will fall away. In response, all I can say is the community view agrees with me: when ICANN originally proposed to treat accountability as a separate issue there was an outcry in the community. This was only satisfied when CCWG-Accountability was told to create Workstream 1 specifically for issues that *had* to be addressed before or as part of NTIA transition. I take the creation and definition of that Workstream as a community consensus decision. Somehow or other, the NTIA must be presented with a proposal that includes proposals to address issues from Workstream 1. I think that is beyond dispute. For the reasons I have given, I believe it would be wise for us to include those Workstream 1 proposals in the report of this CCWG, to form part of a combined draft proposal on behalf of the naming community for transition of NTIA's role in relationship to DNS to multistakeholder stewardship. To make it clear that that is our intention, let us include placeholder text today. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
Malcolm, A consensus call was not made as far as I am aware, nor do I think that we are ready for one. There is really too much work still to be done to do a consensus call; in my opinion, it would be very difficult for most groups to make a clear decision in terms of support until more details are worked and questions answered. But I do think it is a good time to get public input so we can find out whether the high level proposal on the table now is going in a direction that is constructive; that will help us refine it or if need be change direction where needed. Chuck -----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Sunday, November 30, 2014 11:21 AM To: Phil Corwin; Olivier MJ Crepin-Leblond; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option On 29/11/2014 17:03, Phil Corwin wrote:
I salute the entire group, especially those who gathered in Frankfurt, for achieving the development of a remarkably detailed first draft for public comment in a very brief time - and yet, surveying this dialogue, I have to ask, is there a broad consensus within the CWG for what is about to be posted on Monday? Because if there is not then the time should be taken to develop that full consensus, rather than put out for public comment something which seems to be generating the characteristics of drafter's remorse.
This question is now extremely urgent. Do the organisers consider there is a consensus? To my mind that's a clear "No", but it's not for me to call it. If not, do they still planning to go ahead and solicit community consensus for a document that doesn't even command consensus amongst the committee that prepared it? If it's not being published tomorrow as the CWG's draft proposal, are we setting a new target date to have a consensus on the CWG? -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
I agree with Chuck's statement. Let's see what we get from the public and refine/change as needed. -ed On Sun, Nov 30, 2014 at 5:31 PM, Gomes, Chuck <cgomes@verisign.com> wrote:
Malcolm,
A consensus call was not made as far as I am aware, nor do I think that we are ready for one. There is really too much work still to be done to do a consensus call; in my opinion, it would be very difficult for most groups to make a clear decision in terms of support until more details are worked and questions answered. But I do think it is a good time to get public input so we can find out whether the high level proposal on the table now is going in a direction that is constructive; that will help us refine it or if need be change direction where needed.
Chuck
-----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto: cwg-stewardship-bounces@icann.org] On Behalf Of Malcolm Hutty Sent: Sunday, November 30, 2014 11:21 AM To: Phil Corwin; Olivier MJ Crepin-Leblond; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option
On 29/11/2014 17:03, Phil Corwin wrote:
I salute the entire group, especially those who gathered in Frankfurt, for achieving the development of a remarkably detailed first draft for public comment in a very brief time - and yet, surveying this dialogue, I have to ask, is there a broad consensus within the CWG for what is about to be posted on Monday? Because if there is not then the time should be taken to develop that full consensus, rather than put out for public comment something which seems to be generating the characteristics of drafter's remorse.
This question is now extremely urgent.
Do the organisers consider there is a consensus? To my mind that's a clear "No", but it's not for me to call it.
If not, do they still planning to go ahead and solicit community consensus for a document that doesn't even command consensus amongst the committee that prepared it?
If it's not being published tomorrow as the CWG's draft proposal, are we setting a new target date to have a consensus on the CWG?
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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Alan, After reading your contribution, I think that most of the proposals you make are more appropriate to the CCWG on enhanced accountability. That is, you are referring to recalling board members, voting margins by the ICANN board, by-laws regarding GAC advice, and so on. These are all matters relating to ICANN in its role as a policy maker and policy enforcer, and not as _implementer_ of policy via the IANA's modification of the DNS root zone. There has been general agreement on the principle that policy making and its implementation in the root zone should be separate and distinct processes. That is why IETF is separate from IANA, why RIRs are separate from IANA. And while there is no hard and fast line barring ICANN from doing both under proper safeguards, most people recognize the inherent danger of a corporate entity with the unchecked power to implement root zone changes without bottom up, open and consensual policy development That is one reason why NTIA established the role it did as backstop for the root zone, and why the IANA contract required IANA employees to stay out of policy processes. Therefore, this CWG has taken the correct approach of trying to replace the necessary elements of the NTIA role, in order to make both the IANA functions operator accountable to its customers, and to make ICANN's policy process less prone to abuse. The idea that we can simply give IANA to ICANN permanently and rely on internal accountability for it to avoid abusing these mixed up roles is never going to be accepted by a substantial portion of the community. And since your message also made some comments about the acceptability of the current proposal to the US government, let me point out to you that the Kelly bill actually would _require_ IANA to be pulled out of ICANN and formed as a separate corporation; which means that your proposal would certainly NOT be acceptable to the Congress. My most recent blog post performs a detailed analysis of the Kelly bill http://www.internetgovernance.org/2014/11/28/laws-sausages-and-the-iana-tran... You made some good comments about some of the ambiguities surrounding the relationship between the CSC, PRT and Contract Co. As you may have noted, on the call I agreed with some of those points. But those comments justify further development and perhaps modification of the current plan; they do not in any way justify starting from scratch. --MM From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Saturday, November 29, 2014 12:24 AM To: CWG Stewardship Subject: [CWG-Stewardship] My concerns with the draft proposal and an alternative option As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community. I am also quite aware that my alternative options are likely to be vehemently opposed by some. I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one. Overview Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that. Contract Co. Many of the issues surround the "entity" (as it was referred to in Frankfurt). The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT. The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014) Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not. There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later. Multistakeholder Periodic Review Team (PRT) The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity. The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly? So how this body, which is the critical keystone [ http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued. A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend). Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body? Customer Standing Panel (CSC) It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??). There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members. Cost Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)? Acceptability The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN? It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government. It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either). Integratability The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead. We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative. Integrating these two approaches may be difficult. Lost Opportunity Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function. If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN. Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal. If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN. Alternative Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable. All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario). These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years. I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA. There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward. - ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts.
At 29/11/2014 11:07 PM, Milton L Mueller wrote:
Alan, After reading your contribution, I think that most of the proposals you make are more appropriate to the CCWG on enhanced accountability.
I made no proposals with regard to accountability. If you look at my wording, I offered several examples of accountability measures that might be considered by the Accountability CCWG should it need to ensure that multistakeholders were in control and not the sovereign ICANN Board. They were there as a proof-of-concept to counter those who claim there is NO way to control the ICANN Board.
That is, you are referring to recalling board members, voting margins by the ICANN board, by-laws regarding GAC advice, and so on. These are all matters relating to ICANN in its role as a policy maker and policy enforcer, and not as _implementer_ of policy via the IANA's modification of the DNS root zone.
They also matter related to ICANN carrying out the IANA function if that were to be the way this transition plays out. Clearly not what you and many others want, but the subject that I was writing on.
There has been general agreement on the principle that policy making and its implementation in the root zone should be separate and distinct processes. That is why IETF is separate from IANA, why RIRs are separate from IANA. And while there is no hard and fast line barring ICANN from doing both under proper safeguards, most people recognize the inherent danger of a corporate entity with the unchecked power
Bingo. And that unchecked power was what I was attempting to demonstrate could be fixed. And fixing it would have a VERY significant benefit to the policy process as well. And we have little hope of fixing them without using the IANA contract as leverage. Thus my reference to lost opportunities.
to implement root zone changes without bottom up, open and consensual policy development That is one reason why NTIA established the role it did as backstop for the root zone, and why the IANA contract required IANA employees to stay out of policy processes.
Therefore, this CWG has taken the correct approach of trying to replace the necessary elements of the NTIA role, in order to make both the IANA functions operator accountable to its customers, and to make ICANN's policy process less prone to abuse. The idea that we can simply give IANA to ICANN permanently and rely on internal accountability for it to avoid abusing these mixed up roles is never going to be accepted by a substantial portion of the community.
Possibly, and I find that sad. I truly wish that ICANN had addressed these matters of trust long before we came to the opportunity of the IANA transition.
And since your message also made some comments about the acceptability of the current proposal to the US government, let me point out to you that the Kelly bill actually would _require_ IANA to be pulled out of ICANN and formed as a separate corporation
To quote Milton Mueller referring to the Kelly bill, "There are some very good ideas and some very bad ideas in this proposal". If we cannot take all of the aspects of the Kelly bill as gospel, then you cannot use a particular one to demonstrate what the US government wants. Sensible, desirable, far-fetched and overly micromanaged are clearly in the eyes of the beholder.
; which means that your proposal would certainly NOT be acceptable to the Congress. My most recent blog post performs a detailed analysis of the Kelly bill <http://www.internetgovernance.org/2014/11/28/laws-sausages-and-the-iana-transition-part-2-the-kelly-bill/>http://www.internetgovernance.org/2014/11/28/laws-sausages-and-the-iana-transition-part-2-the-kelly-bill/
You made some good comments about some of the ambiguities surrounding the relationship between the CSC, PRT and Contract Co. As you may have noted, on the call I agreed with some of those points. But those comments justify further development and perhaps modification of the current plan; they do not in any way justify starting from scratch.
That presumes we can find practical answers to all of the concerns. If we can do that, and keep the costs low, and sell it to the US gov't., then we will have invented a very cumbersome and complex system that works. If we cannot address all of them, we have, in my opinion, a real problem. Alan
--MM
Alan, based on some of your comments I am having trouble comprehending what your disagreement is about anymore. See comments inline: There has been general agreement on the principle that policy making and its implementation in the root zone should be separate and distinct processes. That is why IETF is separate from IANA, why RIRs are separate from IANA. And while there is no hard and fast line barring ICANN from doing both under proper safeguards, most people recognize the inherent danger of a corporate entity with the unchecked power Bingo. And that unchecked power was what I was attempting to demonstrate could be fixed. And fixing it would have a VERY significant benefit to the policy process as well. And we have little hope of fixing them without using the IANA contract as leverage. MM: Agreed, the IANA contract has to be used as leverage, _both_ to keep ICANN's policy processes in bounds, _and_ to ensure adequate performance. So why are you opposing the contracting model? Thus my reference to lost opportunities. MM: "Lost opportunities" is the phrase I heard from Malcolm Hutty in Frankfurt, after he was told that it would be out of scope for the IANA transition process to be used as leverage to keep ICANN policy making in bounds. I agreed with Malcolm, I believe Chuck Gomes did, too, and I think the group started to reconsider that. But again, people who support Malcolm's view are people who are strongly committed to the external contracting model of governance. So where do you stand on this now? And since your message also made some comments about the acceptability of the current proposal to the US government, let me point out to you that the Kelly bill actually would _require_ IANA to be pulled out of ICANN and formed as a separate corporation To quote Milton Mueller referring to the Kelly bill, "There are some very good ideas and some very bad ideas in this proposal". If we cannot take all of the aspects of the Kelly bill as gospel, then you cannot use a particular one to demonstrate what the US government wants. Sensible, desirable, far-fetched and overly micromanaged are clearly in the eyes of the beholder. MM: My point in the original message to you was not that we should take the Kelly bill as gospel, but that you were mistaken to claim that the "US government" will not accept separating IANA from ICANN. If a significant part of the US government is writing legislation demanding that IANA be separated before they will allow the transition to occur, I don't see how anyone can claim that separating IANA from ICANN is unacceptable to the USG. MM: As a general matter, I don't think it's appropriate for anyone here to use "what the USG will accept" as an argument for or against any provision of the plan, unless a) they are part of the US government and b) such provision clearly contradicts the criteria that the NTIA has set out. The simple fact is that the NTIA criteria do not say anything about whether IANA is contracted or not, separable or not, or inside or outside of ICANN. MM: While we are on the subject of the USG, let me direct your attention to today's column by L. Gordon Crovitz in the Wall Street journal. http://online.wsj.com/articles/gordon-crovitz-halfway-to-wrecking-internet-f... In this opinion piece, Crovitz claims that the transition process is failing, that we have accomplished nothing, that "there has been no progress finding an alternative for protecting the Internet from authoritarian governments" and that "Icann has spent the past nine months trying to come up with a new governance model, to no avail." Obviously he is making this up, but most people aren't tracking our process and don't know better. I'd suggest that before you nitpick the plan further you weigh very carefully the fact that there are vultures circling who would like nothing better than for this effort to fail and for the status quo to remain in place.
At 01/12/2014 09:31 AM, Milton L Mueller wrote:
Content-Language: en-US Content-Type: multipart/alternative; boundary="_000_d1bbff259761403aa9fdf0e1343501a0EX13MBX13adsyredu_"
Alan, based on some of your comments I am having trouble comprehending what your disagreement is about anymore. See comments inline:
There has been general agreement on the principle that policy making and its implementation in the root zone should be separate and distinct processes. That is why IETF is separate from IANA, why RIRs are separate from IANA. And while there is no hard and fast line barring ICANN from doing both under proper safeguards, most people recognize the inherent danger of a corporate entity with the unchecked power
Bingo. And that unchecked power was what I was attempting to demonstrate could be fixed. And fixing it would have a VERY significant benefit to the policy process as well. And we have little hope of fixing them without using the IANA contract as leverage.
MM: Agreed, the IANA contract has to be used as leverage, _both_ to keep ICANN's policy processes in bounds, _and_ to ensure adequate performance. So why are you opposing the contracting model?
My point was that in the contracting model, I think the leverage is largely gone. It is status quo from an ICANN perspective. But my main reason for opposition is that I am far from convinced that all of the questions I and others have can be viably answered.
Thus my reference to lost opportunities.
MM: "Lost opportunities" is the phrase I heard from Malcolm Hutty in Frankfurt, after he was told that it would be out of scope for the IANA transition process to be used as leverage to keep ICANN policy making in bounds. I agreed with Malcolm, I believe Chuck Gomes did, too, and I think the group started to reconsider that. But again, people who support Malcolm's view are people who are strongly committed to the external contracting model of governance. So where do you stand on this now?
I think that using the transition to force accountability with respect to policy IS out of scope. But I also think that SOME transition models will have the incidental benefit of better policy-making accountability.
And since your message also made some comments about the acceptability of the current proposal to the US government, let me point out to you that the Kelly bill actually would _require_ IANA to be pulled out of ICANN and formed as a separate corporation
To quote Milton Mueller referring to the Kelly bill, "There are some very good ideas and some very bad ideas in this proposal". If we cannot take all of the aspects of the Kelly bill as gospel, then you cannot use a particular one to demonstrate what the US government wants. Sensible, desirable, far-fetched and overly micromanaged are clearly in the eyes of the beholder.
MM: My point in the original message to you was not that we should take the Kelly bill as gospel, but that you were mistaken to claim that the "US government" will not accept separating IANA from ICANN. If a significant part of the US government is writing legislation demanding that IANA be separated before they will allow the transition to occur, I don't see how anyone can claim that separating IANA from ICANN is unacceptable to the USG.
MM: As a general matter, I don't think it's appropriate for anyone here to use "what the USG will accept" as an argument for or against any provision of the plan, unless a) they are part of the US government and b) such provision clearly contradicts the criteria that the NTIA has set out. The simple fact is that the NTIA criteria do not say anything about whether IANA is contracted or not, separable or not, or inside or outside of ICANN.
I never claimed that the current proposal would not be accepted. I try to be quite careful in what I write. I said "It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government." That was an opinion, but it voices a possibility that I believe we need to consider.
MM: While we are on the subject of the USG, let me direct your attention to today's column by L. Gordon Crovitz in the Wall Street journal. <http://online.wsj.com/articles/gordon-crovitz-halfway-to-wrecking-internet-freedom-1417387404?cb=logged0.09525622939690948>http://online.wsj.com/articles/gordon-crovitz-halfway-to-wrecking-internet-freedom-1417387404?cb=logged0.09525622939690948
In this opinion piece, Crovitz claims that the transition process is failing, that we have accomplished nothing, that "there has been no progress finding an alternative for protecting the Internet from authoritarian governments" and that "Icann has spent the past nine months trying to come up with a new governance model, to no avail." Obviously he is making this up, but most people aren't tracking our process and don't know better.
I'd suggest that before you nitpick the plan further you weigh very carefully the fact that there are vultures circling who would like nothing better than for this effort to fail and for the status quo to remain in place.
I find it rather inappropriate to consider the comments I presented, ones that I and others (and indeed YOU, in some cases as you have confirmed) feel are crucial to the ultimate success of this transition, as NITPICKING. Alan
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On 01-Dec-14 17:02, Alan Greenberg wrote:
But my main reason for opposition is that I am far from convinced that all of the questions I and others have can be viably answered.
As far as I can tell they have been answered. You just have not accepted the answers you have been given. which is of course your right. But from my reading they have been answered multiple times in different ways. My answer invovled the parallel with the BCP 101 from the IETF. where the administrator of contracting Co is just that an administrator, acting like the lawyer who only does what she has been instructed to do by the PRT. With the PRT being the multistakeholders of ICANN and perhaps beyond that we are used to , but unfettered by the ability of the Board to overrule their decisions. And the PRT being awoken periodically and whenever the CSC felt there was a crisis for them to handle. You seem to have an issue with them not being a standing committee. The reason for that is to avoid them becoming ICANN like and acquiring new functions because they were bored when they had nothing else to do. Standing committees with nothing to do, find new stuff to do. Hence the CSC as an alarm to bring them into existence whenever necessary out of period.
I think that using the transition to force accountability with respect to policy IS out of scope. But I also think that SOME transition models will have the incidental benefit of better policy-making accountability.
It is not out of scope with forcing accountability for IANA. A periodic RFP is repsnsible for forcing IANA accountability whether it is at ICANN or elsewhere. And IANA accountability is in our charter. avri
Dear Avri, On 01/12/2014 17:16, Avri Doria wrote:
On 01-Dec-14 17:02, Alan Greenberg wrote:
But my main reason for opposition is that I am far from convinced that all of the questions I and others have can be viably answered.
As far as I can tell they have been answered. You just have not accepted the answers you have been given. which is of course your right. But from my reading they have been answered multiple times in different ways.
I am sorry, I must have missed the messages. Please point me to the archived message(s) which provide(s): 1. Proposed contracting entity structure; PRT (or MRT) entity structure. 2. Jurisdiction of contracting company. Jurisdiction of PRT (MRT) entity. 3. Accountability processes that will be ingrained in the bylaws of the above two entities. At that point, I might feel better about delegating those two functions to new legal entities. Kind regards, Olivier
Olivier, I do not understand why you are treating PRT/MRT as a separate legal entity and raising questions about its by-laws and jurisdiction? On Mon, Dec 1, 2014 at 10:01 PM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:
Dear Avri,
On 01/12/2014 17:16, Avri Doria wrote:
On 01-Dec-14 17:02, Alan Greenberg wrote:
But my main reason for opposition is that I am far from convinced that all of the questions I and others have can be viably answered.
As far as I can tell they have been answered. You just have not accepted the answers you have been given. which is of course your right. But from my reading they have been answered multiple times in different ways.
I am sorry, I must have missed the messages. Please point me to the archived message(s) which provide(s):
1. Proposed contracting entity structure; PRT (or MRT) entity structure. 2. Jurisdiction of contracting company. Jurisdiction of PRT (MRT) entity. 3. Accountability processes that will be ingrained in the bylaws of the above two entities.
At that point, I might feel better about delegating those two functions to new legal entities.
Kind regards,
Olivier _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
Dear Guru, thanks for pointing this out. If the PRT/MRT is not a separate legal entity then of course this part of the question is moot. Thanks for pointing this out. But at the moment the structure of the PRT/MRT is unclear to me. An ad-hoc/standing committee funded how? Meeting when? Coordinated how? With or without staff? Kind regards, Olivier On 01/12/2014 17:41, Guru Acharya wrote:
Olivier, I do not understand why you are treating PRT/MRT as a separate legal entity and raising questions about its by-laws and jurisdiction?
On Mon, Dec 1, 2014 at 10:01 PM, Olivier MJ Crepin-Leblond <ocl@gih.com <mailto:ocl@gih.com>> wrote:
Dear Avri,
On 01/12/2014 17:16, Avri Doria wrote: > On 01-Dec-14 17:02, Alan Greenberg wrote: >> But my main reason for opposition is that I am far from convinced >> that all of the questions I and others have can be viably answered. > > As far as I can tell they have been answered. You just have not > accepted the answers you have been given. > which is of course your right. But from my reading they have been > answered multiple times in different ways.
I am sorry, I must have missed the messages. Please point me to the archived message(s) which provide(s):
1. Proposed contracting entity structure; PRT (or MRT) entity structure. 2. Jurisdiction of contracting company. Jurisdiction of PRT (MRT) entity. 3. Accountability processes that will be ingrained in the bylaws of the above two entities.
At that point, I might feel better about delegating those two functions to new legal entities.
Kind regards,
Olivier _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
-- Olivier MJ Crépin-Leblond, PhD http://www.gih.com/ocl.html
Just for the record, it's a +1 for me on Olivier's questions. I like to see what the claimed multistakeholder PRT will look like....I hope it better include those beyond ICANN community...Let's see how that fashion out. It will also be good to run a future scenario case test on the proposed composition. Regards sent from Google nexus 4 kindly excuse brevity and typos. On 1 Dec 2014 17:32, "Olivier MJ Crepin-Leblond" <ocl@gih.com> wrote:
Dear Avri,
On 01/12/2014 17:16, Avri Doria wrote:
On 01-Dec-14 17:02, Alan Greenberg wrote:
But my main reason for opposition is that I am far from convinced that all of the questions I and others have can be viably answered.
As far as I can tell they have been answered. You just have not accepted the answers you have been given. which is of course your right. But from my reading they have been answered multiple times in different ways.
I am sorry, I must have missed the messages. Please point me to the archived message(s) which provide(s):
1. Proposed contracting entity structure; PRT (or MRT) entity structure. 2. Jurisdiction of contracting company. Jurisdiction of PRT (MRT) entity. 3. Accountability processes that will be ingrained in the bylaws of the above two entities.
At that point, I might feel better about delegating those two functions to new legal entities.
Kind regards,
Olivier _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
I also must have missed some messages. Who is it that convenes the PRT? Who protects its members from lawsuits or threat or pressure? Who is it that monitors that IANA is following policy (particularly policy that registries would prefer not being followed)? Funding? There are more questions, but I think I will stop there. Alan At 01/12/2014 11:31 AM, Olivier MJ Crepin-Leblond wrote:
Dear Avri,
On 01/12/2014 17:16, Avri Doria wrote:
On 01-Dec-14 17:02, Alan Greenberg wrote:
But my main reason for opposition is that I am far from convinced that all of the questions I and others have can be viably answered.
As far as I can tell they have been answered. You just have not accepted the answers you have been given. which is of course your right. But from my reading they have been answered multiple times in different ways.
I am sorry, I must have missed the messages. Please point me to the archived message(s) which provide(s):
1. Proposed contracting entity structure; PRT (or MRT) entity structure. 2. Jurisdiction of contracting company. Jurisdiction of PRT (MRT) entity. 3. Accountability processes that will be ingrained in the bylaws of the above two entities.
At that point, I might feel better about delegating those two functions to new legal entities.
Kind regards,
Olivier _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
I think most of Alan's concerns about integratability with other proposals, acceptability by USG, nature of PRT etc have been addressed by multiple people. What remains un-answered are Alan's concerns about (i) Contract Co becoming a target for litigation; (ii) source of funding of Contract Co; (iii) jurisdiction of Contract Co; and (iv) accountability of Contract Co. I agree that these are substantial concerns. The Contract Co can be the subject of litigation for multiple reasons including wrongful termination of a IANA contract; or any cause of action related to a failed bid for a IANA contract. It can also be reasonable to assume that Contract Co will be made a party to all cases that are against ICANN in the future. For example, a case similar to the recent 'Iran/Iraq ccTLD as attachable property' will definitely make Contract Co a respondent along with ICANN. Therefore, Contract Co will need a substantial litigation war chest. There will also be substantial costs involved in contract drafting; negotiation; preparation of RFPs etc. This needs to be addressed. Greg suggested the possibility of a litigation indemnification mechanism. A mechanism to deal with unforeseen non-litigation expenses should also be explored. @Allan & Olivier: What accountability mechanisms do you suggest should be built into the Contract Co by-laws? On Mon, Dec 1, 2014 at 9:46 PM, Avri Doria <avri@acm.org> wrote:
On 01-Dec-14 17:02, Alan Greenberg wrote:
But my main reason for opposition is that I am far from convinced that all of the questions I and others have can be viably answered.
As far as I can tell they have been answered. You just have not accepted the answers you have been given. which is of course your right. But from my reading they have been answered multiple times in different ways.
My answer invovled the parallel with the BCP 101 from the IETF. where the administrator of contracting Co is just that an administrator, acting like the lawyer who only does what she has been instructed to do by the PRT. With the PRT being the multistakeholders of ICANN and perhaps beyond that we are used to , but unfettered by the ability of the Board to overrule their decisions. And the PRT being awoken periodically and whenever the CSC felt there was a crisis for them to handle.
You seem to have an issue with them not being a standing committee. The reason for that is to avoid them becoming ICANN like and acquiring new functions because they were bored when they had nothing else to do. Standing committees with nothing to do, find new stuff to do. Hence the CSC as an alarm to bring them into existence whenever necessary out of period.
I think that using the transition to force accountability with respect to policy IS out of scope. But I also think that SOME transition models will have the incidental benefit of better policy-making accountability.
It is not out of scope with forcing accountability for IANA. A periodic RFP is repsnsible for forcing IANA accountability whether it is at ICANN or elsewhere. And IANA accountability is in our charter.
avri
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Thank you Alan for the time and thought you have put into this. My comments, for what they are worth, interspersed. Holly On 29 Nov 2014, at 4:23 pm, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community.
I am also quite aware that my alternative options are likely to be vehemently opposed by some.
I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one.
Overview
Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that.
Contract Co.
Many of the issues surround the "entity" (as it was referred to in Frankfurt).
First - using a Webster’s Dictionary (for the many Americans commenting) entity is defined as a ‘thing which has reality and distinctness’. NB: It does NOT NECESSARILY imply any corporate status. So there was a big and surprising leap from entity - which many of us supported - to some kind of corporate structure - which seems to have become a done deal in the minds of some. However, if it ‘signs a contract’, it necessarily has some legal status. And the tasks given below suggest it should. Is it too late to ask whether it is possible to have the PRT without a contract company.
The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT.
The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014)
Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not.
There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later.
Multistakeholder Periodic Review Team (PRT)
The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity.
The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly?
The idea behind talking about an entity rather than a corporate structure was to suggest that it is possible to have structures with functions, without those structures have an individual corporate personality. ALAC, GNSO,ccNSO, SSAC are all examples of entities that have an ongoing existence, functions, etc but do not have separate corporate identities. It can be done - indeed, is being done.
So how this body, which is the critical keystone [ http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued.
This was always my concern with creating a new corporate structure.
A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend). For my money, these are critical questions - which remain unanswered.
Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body? EXACTLY - but the same can be said of the Contract Company. Who funds it, who monitors it. And do we not then wind up with accountability issues for ICANN AND its oversight body.
Customer Standing Panel (CSC)
It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??). Absolutely agree. I think the problem with the concept is the word ‘customer’; it does not encompass all those who are impacted by IANA/ICANN decisions. And agree with the comment abut the GNSO.
There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members. Which is why a Standing Panel based on the MSM is the better model.
Cost
Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)? WELL SAID
Acceptability
The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN? Again, well said
It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government. I don’t think it would be either.
It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either).
Integratability
The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead.
We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative.
Integrating these two approaches may be difficult.
Lost Opportunity
Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function.
If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal.
If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN.
Alternative
Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable.
All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario).
These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years. And this is what worries Larry Strickling - what he said publicly at the last ICANN meeting. He does want a credible answer that will satisfy his masters (including Congress)
I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA.
There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward.
- ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts. I don’t think this is the entire answer BUT it goes a long way towards a workable response that can dovetail nicely with what both the numbers and protocols community are coming up with.
Again, that you Alan - this is a really good summary of both concerns and a very positive way forward.
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Holly and all: If we are turning to the dictionary, please consider the following: Entity *A real being; existence. An organization or being that possesses separate existence for tax purposes. Examples would be corporations, partnerships, estates, and trusts. The accounting entity for which accounting statements are prepared may not be the same as the entity defined by law.* Entity *includes corporation and foreign corporation; not-for-profit corporation; profit and not for-profit unincorporated association;* Business Trust <http://legal-dictionary.thefreedictionary.com/Business+Trust>, *estate, partnership, trust, and two or more persons having a joint or common economic interest; and state, U.S., and foreign governments.* *An existence apart, such as a corporation in relation to its stockholders.* *Entity includes person, estate, trust, governmental unit.* West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved. This is what I mean when I say "entity." I'll try to say "legal entity" to avoid any doubt in future. But there was no doubt in my mind (or many others) that when we were talking about creating an entity -- and in particular, an entity that could enter into a contract -- that this is what we were talking about. For what it's worth, the Merriam-Webster's definition that I found first when searching the Internet is as follows: 1* a* *:* being <http://www.merriam-webster.com/dictionary/being>, existence <http://www.merriam-webster.com/dictionary/existence>; *especially* *:* independent, separate, or self-contained existence *b* *:* the existence of a thing as contrasted with its attributes 2*:* something that has separate and distinct existence and objective or conceptual reality 3*:* an organization (as a business or governmental unit) that has an identity separate from those of its members Greg On Sat, Nov 29, 2014 at 11:16 PM, Holly Raiche <h.raiche@internode.on.net> wrote:
Thank you Alan for the time and thought you have put into this. My comments, for what they are worth, interspersed.
Holly
On 29 Nov 2014, at 4:23 pm, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community.
I am also quite aware that my alternative options are likely to be vehemently opposed by some.
I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one.
*Overview *Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that.
*Contract Co. *Many of the issues surround the "entity" (as it was referred to in Frankfurt).
First - using a Webster’s Dictionary (for the many Americans commenting) entity is defined as a ‘thing which has reality and distinctness’. NB: It does NOT NECESSARILY imply any corporate status. So there was a big and surprising leap from entity - which many of us supported - to some kind of corporate structure - which seems to have become a done deal in the minds of some. However, if it ‘signs a contract’, it necessarily has some legal status. And the tasks given below suggest it should. Is it too late to ask whether it is possible to have the PRT without a contract company.
The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT.
The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014)
Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not.
There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later.
*Multistakeholder Periodic Review Team (PRT)*
The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity.
The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly?
The idea behind talking about an entity rather than a corporate structure was to suggest that it is possible to have structures with functions, without those structures have an individual corporate personality. ALAC, GNSO,ccNSO, SSAC are all examples of entities that have an ongoing existence, functions, etc but do not have separate corporate identities. It can be done - indeed, is being done.
So how this body, which is the critical keystone [ http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued.
This was always my concern with creating a new corporate structure.
A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend).
For my money, these are critical questions - which remain unanswered.
Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body?
EXACTLY - but the same can be said of the Contract Company. Who funds it, who monitors it. And do we not then wind up with accountability issues for ICANN AND its oversight body.
*Customer Standing Panel (CSC) *It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??).
Absolutely agree. I think the problem with the concept is the word ‘customer’; it does not encompass all those who are impacted by IANA/ICANN decisions. And agree with the comment abut the GNSO.
There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members.
Which is why a Standing Panel based on the MSM is the better model.
*Cost *Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)?
WELL SAID
*Acceptability *The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN?
Again, well said
It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government.
I don’t think it would be either.
It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either).
*Integratability *The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead.
We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative.
Integrating these two approaches may be difficult.
*Lost Opportunity *Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function.
If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal.
If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN.
*Alternative *Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable.
All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario).
These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years.
And this is what worries Larry Strickling - what he said publicly at the last ICANN meeting. He does want a credible answer that will satisfy his masters (including Congress)
I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA.
There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward.
- ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts.
I don’t think this is the entire answer BUT it goes a long way towards a workable response that can dovetail nicely with what both the numbers and protocols community are coming up with.
Again, that you Alan - this is a really good summary of both concerns and a very positive way forward.
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-- *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *666 Third Avenue **ï** New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>*
Hi Greg The reason I used Websters and deliberately did not go to law dictionaries is that the term is being use by non-lawyers. I am well aware of how it may be defined in a legal context but that is not the context in which the term is being used by at least some of the participants on this list. So my guess is the cause of much of the discussion (and disagreement) on the list is that different participants have used words differently. I’m not saying you - or anyone - is wrong. I’m saying that, if a term is to be used, we all need to agree on its definition. Holly On 30 Nov 2014, at 5:42 pm, Greg Shatan <gregshatanipc@gmail.com> wrote:
Holly and all:
If we are turning to the dictionary, please consider the following:
Entity A real being; existence. An organization or being that possesses separate existence for tax purposes. Examples would be corporations, partnerships, estates, and trusts. The accounting entity for which accounting statements are prepared may not be the same as the entity defined by law.
Entity includes corporation and foreign corporation; not-for-profit corporation; profit and not for-profit unincorporated association; Business Trust, estate, partnership, trust, and two or more persons having a joint or common economic interest; and state, U.S., and foreign governments.
An existence apart, such as a corporation in relation to its stockholders.
Entity includes person, estate, trust, governmental unit.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
This is what I mean when I say "entity." I'll try to say "legal entity" to avoid any doubt in future. But there was no doubt in my mind (or many others) that when we were talking about creating an entity -- and in particular, an entity that could enter into a contract -- that this is what we were talking about.
For what it's worth, the Merriam-Webster's definition that I found first when searching the Internet is as follows:
1 a : being, existence; especially : independent, separate, or self-contained existence b : the existence of a thing as contrasted with its attributes 2: something that has separate and distinct existence and objective or conceptual reality 3: an organization (as a business or governmental unit) that has an identity separate from those of its members
Greg
On Sat, Nov 29, 2014 at 11:16 PM, Holly Raiche <h.raiche@internode.on.net> wrote: Thank you Alan for the time and thought you have put into this. My comments, for what they are worth, interspersed.
Holly
On 29 Nov 2014, at 4:23 pm, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community.
I am also quite aware that my alternative options are likely to be vehemently opposed by some.
I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one.
Overview
Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that.
Contract Co.
Many of the issues surround the "entity" (as it was referred to in Frankfurt).
First - using a Webster’s Dictionary (for the many Americans commenting) entity is defined as a ‘thing which has reality and distinctness’. NB: It does NOT NECESSARILY imply any corporate status. So there was a big and surprising leap from entity - which many of us supported - to some kind of corporate structure - which seems to have become a done deal in the minds of some. However, if it ‘signs a contract’, it necessarily has some legal status. And the tasks given below suggest it should. Is it too late to ask whether it is possible to have the PRT without a contract company.
The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT.
The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014)
Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not.
There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later.
Multistakeholder Periodic Review Team (PRT)
The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity.
The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly?
The idea behind talking about an entity rather than a corporate structure was to suggest that it is possible to have structures with functions, without those structures have an individual corporate personality. ALAC, GNSO,ccNSO, SSAC are all examples of entities that have an ongoing existence, functions, etc but do not have separate corporate identities. It can be done - indeed, is being done.
So how this body, which is the critical keystone [ http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued.
This was always my concern with creating a new corporate structure.
A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend). For my money, these are critical questions - which remain unanswered.
Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body? EXACTLY - but the same can be said of the Contract Company. Who funds it, who monitors it. And do we not then wind up with accountability issues for ICANN AND its oversight body.
Customer Standing Panel (CSC)
It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??). Absolutely agree. I think the problem with the concept is the word ‘customer’; it does not encompass all those who are impacted by IANA/ICANN decisions. And agree with the comment abut the GNSO.
There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members. Which is why a Standing Panel based on the MSM is the better model.
Cost
Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)? WELL SAID
Acceptability
The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN? Again, well said
It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government. I don’t think it would be either.
It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either).
Integratability
The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead.
We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative.
Integrating these two approaches may be difficult.
Lost Opportunity
Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function.
If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal.
If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN.
Alternative
Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable.
All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario).
These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years. And this is what worries Larry Strickling - what he said publicly at the last ICANN meeting. He does want a credible answer that will satisfy his masters (including Congress)
I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA.
There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward.
- ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts. I don’t think this is the entire answer BUT it goes a long way towards a workable response that can dovetail nicely with what both the numbers and protocols community are coming up with.
Again, that you Alan - this is a really good summary of both concerns and a very positive way forward.
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
-- Gregory S. Shatan ï Abelman Frayne & Schwab 666 Third Avenue ï New York, NY 10017-5621 Direct 212-885-9253 | Main 212-949-9022 Fax 212-949-9190 | Cell 917-816-6428 gsshatan@lawabel.com ICANN-related: gregshatanipc@gmail.com www.lawabel.com
Dear Greg, thanks for this. If "Entity" is used with this meaning (which I was not aware of) then the IANA Transition Flow Chart titles referring to the different component groups refers to the IANA Customer Standing Committee, the IANA Periodic Review Team, the Independent Appeals Panel for Policy Implementation and the IANA Contracting Entity as all being "Entities". I believe that nobody is advocating that each of these "Entities" be a separate existence for tax purposes etc. Kind regards, Olivier On 30/11/2014 07:42, Greg Shatan wrote:
Holly and all:
If we are turning to the dictionary, please consider the following:
Entity
/A real being; existence. An organization or being that possesses separate existence for tax purposes. Examples would be corporations, partnerships, estates, and trusts. The accounting entity for which accounting statements are prepared may not be the same as the entity defined by law./
Entity /includes corporation and foreign corporation; not-for-profit corporation; profit and not for-profit unincorporated association;/ Business Trust <http://legal-dictionary.thefreedictionary.com/Business+Trust>, /estate, partnership, trust, and two or more persons having a joint or common economic interest; and state, U.S., and foreign governments./
/An existence apart, such as a corporation in relation to its stockholders./
/Entity includes person, estate, trust, governmental unit./
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
This is what I mean when I say "entity." I'll try to say "legal entity" to avoid any doubt in future. But there was no doubt in my mind (or many others) that when we were talking about creating an entity -- and in particular, an entity that could enter into a contract -- that this is what we were talking about.
For what it's worth, the Merriam-Webster's definition that I found first when searching the Internet is as follows:
1/a/ *:* being <http://www.merriam-webster.com/dictionary/being>, existence <http://www.merriam-webster.com/dictionary/existence>; /especially/ *:* independent, separate, or self-contained existence /b/ *:* the existence of a thing as contrasted with its attributes 2*:* something that has separate and distinct existence and objective or conceptual reality 3*:* an organization (as a business or governmental unit) that has an identity separate from those of its members
Greg
On Sat, Nov 29, 2014 at 11:16 PM, Holly Raiche <h.raiche@internode.on.net <mailto:h.raiche@internode.on.net>> wrote:
Thank you Alan for the time and thought you have put into this. My comments, for what they are worth, interspersed.
Holly
On 29 Nov 2014, at 4:23 pm, Alan Greenberg <alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca>> wrote:
As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community.
I am also quite aware that my alternative options are likely to be vehemently opposed by some.
I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one.
*Overview
*Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer. This message will necessarily be long - my apologies for that.
*Contract Co.
*Many of the issues surround the "entity" (as it was referred to in Frankfurt).
First - using a Webster’s Dictionary (for the many Americans commenting) entity is defined as a ‘thing which has reality and distinctness’. NB: It does NOT NECESSARILY imply any corporate status. So there was a big and surprising leap from entity - which many of us supported - to some kind of corporate structure - which seems to have become a done deal in the minds of some. However, if it ‘signs a contract’, it necessarily has some legal status. And the tasks given below suggest it should. Is it too late to ask whether it is possible to have the PRT without a contract company.
The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic. Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities. Whether it is possible to have such an empty company do all this remains to be demonstrated. I will deal with problems with this outsourcing under the PRT.
The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014)
Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s). Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it. Contract Co. will not.
There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later.
*Multistakeholder Periodic Review Team (PRT) *
* *The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity.
The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly?
The idea behind talking about an entity rather than a corporate structure was to suggest that it is possible to have structures with functions, without those structures have an individual corporate personality. ALAC, GNSO,ccNSO, SSAC are all examples of entities that have an ongoing existence, functions, etc but do not have separate corporate identities. It can be done - indeed, is being done.
So how this body, which is the critical keystone [http://en.wikipedia.org/wiki/Keystone_(architecture <http://en.wikipedia.org/wiki/Keystone_%28architecture>)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured? Or sued.
This was always my concern with creating a new corporate structure.
A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)? And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend).
For my money, these are critical questions - which remain unanswered.
Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body?
EXACTLY - but the same can be said of the Contract Company. Who funds it, who monitors it. And do we not then wind up with accountability issues for ICANN AND its oversight body.
*Customer Standing Panel (CSC)
*It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy. You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal. During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??).
Absolutely agree. I think the problem with the concept is the word ‘customer’; it does not encompass all those who are impacted by IANA/ICANN decisions. And agree with the comment abut the GNSO.
There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members.
Which is why a Standing Panel based on the MSM is the better model.
*Cost
*Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)?
WELL SAID
*Acceptability
*The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN?
Again, well said
It is not at all clear that a proposal such as one that the CWG has put in this draft would be acceptable to the US government.
I don’t think it would be either.
It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either).
*Integratability
*The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead.
We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative.
Integrating these two approaches may be difficult.
*Lost Opportunity
*Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function.
If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal.
If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN.
*Alternative
*Simply criticizing the current CWG draft proposal is not particularly useful without alternatives. My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable.
All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community. That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario).
These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years.
And this is what worries Larry Strickling - what he said publicly at the last ICANN meeting. He does want a credible answer that will satisfy his masters (including Congress)
I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA.
There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward.
- ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts.
I don’t think this is the entire answer BUT it goes a long way towards a workable response that can dovetail nicely with what both the numbers and protocols community are coming up with.
Again, that you Alan - this is a really good summary of both concerns and a very positive way forward.
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Olivier, I think arguing about the dictionary definition of entities is not very constructive at this stage. Greg only wants to point out that for a Contracting Entity to enter into a contract, the said entity needs to have a legal existence. The other three entities (PRT,CSC, IAP) do not need to enter into a contract and therefore do not need legal existence. Not-for-profit company is how some of us think that legal existence can be operationalised for the Contracting Entity because such a not-for-profit company does not have owners, promoters or shareholders in the traditional sense. If you are suggesting another method of operationalising the legal existence I think everyone is open ears. In my opinion, a "trust" is not how that legal existence can be operationalised in the present context. >From what I understand there are two strong "non-negotiable" beliefs that exist in this CWG: 1) First belief is that an external IANA contract is essential for accountability. 2) Second belief is that the creation of a new legal entity with growth dynamics similar to that of ICANN is not acceptable. I think you and some other at-large are coming from the second belief. The current proposal attempts to make a very good balance between the two beliefs. And maybe we can work towards making the component of the proposal that operationalises the second belief even stronger. Currently, the Contract Co is made to look dull/boring/unattractive/growth-less by delegating everything of importance to the PRT. The Contract Co will only hold the contract while the PRT will do the actual work. We hope that this will stub the potential growth of Contract Co. Maybe a constructive way forward is to suggest how the Contract Co can be made even more dull/boring/growth-less than presently envisioned. Or you could take the un-constructive way forward and continue arguing that the first belief should not be incorporated in the proposal at all. On Sun, Nov 30, 2014 at 1:41 PM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote: > Dear Greg, > > thanks for this. If "Entity" is used with this meaning (which I was not > aware of) then the IANA Transition Flow Chart titles referring to the > different component groups refers to the IANA Customer Standing Committee, > the IANA Periodic Review Team, the Independent Appeals Panel for Policy > Implementation and the IANA Contracting Entity as all being "Entities". > I believe that nobody is advocating that each of these "Entities" be a > separate existence for tax purposes etc. > > Kind regards, > > Olivier > > > > On 30/11/2014 07:42, Greg Shatan wrote: > > Holly and all: > > If we are turning to the dictionary, please consider the following: > > Entity > > *A real being; existence. An organization or being that possesses separate > existence for tax purposes. Examples would be corporations, partnerships, > estates, and trusts. The accounting entity for which accounting statements > are prepared may not be the same as the entity defined by law.* > > Entity *includes corporation and foreign corporation; not-for-profit > corporation; profit and not for-profit unincorporated association;* Business > Trust <http://legal-dictionary.thefreedictionary.com/Business+Trust>, *estate, > partnership, trust, and two or more persons having a joint or common > economic interest; and state, U.S., and foreign governments.* > > *An existence apart, such as a corporation in relation to its > stockholders.* > > *Entity includes person, estate, trust, governmental unit.* > West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale > Group, Inc. All rights reserved. > > This is what I mean when I say "entity." I'll try to say "legal entity" > to avoid any doubt in future. But there was no doubt in my mind (or many > others) that when we were talking about creating an entity -- and in > particular, an entity that could enter into a contract -- that this is what > we were talking about. > > For what it's worth, the Merriam-Webster's definition that I found first > when searching the Internet is as follows: > > 1* a* *:* being <http://www.merriam-webster.com/dictionary/being>, > existence <http://www.merriam-webster.com/dictionary/existence>; > *especially* *:* independent, separate, or self-contained existence > *b* *:* the existence of a thing as contrasted with its attributes > 2*:* something that has separate and distinct existence and objective > or conceptual reality > 3*:* an organization (as a business or governmental unit) that has an > identity separate from those of its members > > Greg > > On Sat, Nov 29, 2014 at 11:16 PM, Holly Raiche <h.raiche@internode.on.net> > wrote: > >> Thank you Alan for the time and thought you have put into this. My >> comments, for what they are worth, interspersed. >> >> Holly >> >> On 29 Nov 2014, at 4:23 pm, Alan Greenberg <alan.greenberg@mcgill.ca> >> wrote: >> >> As I have mentioned during the F2F meeting in Frankfurt and on the most >> recent teleconference, I have significant problems with the proposal >> currently on the table. I am taking this opportunity to present my concerns >> in somewhat more detail, and I will also present what I believe to be a >> viable alternative. The ideas presented are my own, but I do know that they >> are largely shared by my At-Large colleagues and by some others in the >> community. >> >> I am also quite aware that my alternative options are likely to be >> vehemently opposed by some. >> >> I should also add that there are aspects of the current draft CWG >> proposal that I strongly support. The Independent Appeals Panel is perhaps >> the most important one. >> >> >> >> *Overview *Many of my concerns are due to the large number of "details" >> that are, as yet, unspecified. Perhaps some of my concerns will be negated >> once there are sufficient answers, but I have the nagging feeling that for >> many, there will be no viable answer. This message will necessarily be long >> - my apologies for that. >> >> >> >> *Contract Co. *Many of the issues surround the "entity" (as it was >> referred to in Frankfurt). >> >> >> First - using a Webster’s Dictionary (for the many Americans >> commenting) entity is defined as a ‘thing which has reality and >> distinctness’. NB: It does NOT NECESSARILY imply any corporate status. So >> there was a big and surprising leap from entity - which many of us >> supported - to some kind of corporate structure - which seems to have >> become a done deal in the minds of some. However, if it ‘signs a contract’, >> it necessarily has some legal status. And the tasks given below suggest it >> should. Is it too late to ask whether it is possible to have the PRT >> without a contract company. >> >> The draft somewhat glibly says that it will only sign the contract. >> But it seems to be outsourcing much of its responsibility to the >> Multistakeholder Periodic Review Team (PRT), and that seems problematic. >> Perhaps the intent is not that all of these things go to the PRT, but there >> does not seem to be anywhere else for the functions to go. Among the tasks >> that it has outsourced are consultation regarding the contents of future >> RFPs, RFP issuance, RFP evaluation, contract negotiation and contract >> enforcement. What it cannot outsource is addressing legal issues such as >> being sued by a bidder who failed for win the contract and other such >> possibilities. Whether it is possible to have such an empty company do all >> this remains to be demonstrated. I will deal with problems with this >> outsourcing under the PRT. >> >> The jurisdiction under which the company is registered has been the >> subject of some discussion. Clearly there are those who feel that under no >> conditions can it be the US. At the same time, there are some indications >> (such as terms in the Kelly bill) that imply that the US Government may not >> be willing to accept anything other than the US. Note that I understand >> that the Kelly bill itself may wither and die, but to quote Milton Meuller, >> "We should also pay attention to it because the bill provides a very good >> benchmark for preparing for the kind of questions that the NTIA is likely >> to be asked after they get a complete proposal from the ICG and begin to >> implement it. The Kelly bill can be considered a list of the concerns that >> US-based interests are going to be using to assess the final proposal. The >> GAO Report is equally important in this regard. Ignore them at your peril." >> (E-mail to the CWG-Stewardship list on 23 Nov 2014) >> >> Without details of exactly how this corporation will exist, it is >> impossible to assure oneself that it cannot be captured or controlled by >> some entity or government(s). Running IANA will be a treasured target by >> some countries and we do not know what lengths they would go to capture the >> contract. NTIA had the strength of the US (and its battleships and such) >> behind it. Contract Co. will not. >> >> There has been no discussion about how this entity, or any part of the >> overall proposal, is funded. More on this later. >> >> >> *Multistakeholder Periodic Review Team (PRT) * >> >> >> >> The PRT is effectively the operational arm of Contract Co. It is the >> entity that makes decision for Contract Co., presumably including those >> related to the RFP, contract negotiations, contract enforcement and much >> more. But by its very name, it is Periodic. It does not exist at all times >> and there are some in the community that have said it should be >> re-constituted afresh every time it is needed (perhaps like the Phoenix >> born from the ashes of its predecessor). I fail to understand to how it can >> take action on problems if it is not an ongoing entity. >> >> The description says that it is a "body" with representatives selected by >> the relevant bodies. Accepting that "relevant" is to be decided later, it >> is unclear under whose auspices this body is convened, and how we can >> ensure that it remains free from capture or malformation. It was suggested >> in Frankfurt that this body could be akin to (or even identical to) the >> IANA-CWG, but given that the entire concept of this elaborate >> infrastructure is to allow ICANN to be completely excluded from the IANA >> management process, presumably because it has ceased to carry out this >> function as well as all parties claim it is now doing, what makes us think >> that ICANN would take responsibility for this, or more to the point, could >> be trusted to do it properly? >> >> The idea behind talking about an entity rather than a corporate structure >> was to suggest that it is possible to have structures with functions, >> without those structures have an individual corporate personality. ALAC, >> GNSO,ccNSO, SSAC are all examples of entities that have an ongoing >> existence, functions, etc but do not have separate corporate identities. >> It can be done - indeed, is being done. >> >> >> So how this body, which is the critical keystone [ >> http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this >> entire superstructure depends, constituted, and funded. And how does one >> ensure that it is not corrupted, or captured? Or sued. >> >> This was always my concern with creating a new corporate structure. >> >> A body as large as it will have to be will require infrastructure such >> as a secretariat - how do we ensure that IT is not subverted (just look at >> all the effort that has gone into ensuring an independent ICG secretariat)? >> And without a corporate backing of the PRT, its members would be personally >> liable in the case of a lawsuit. Who would want to serve on such a group? >> Moreover, in an environment where the PRT is taking very significant >> decisions, both financial offers and personal threats would be an effective >> method of capture (and presumably this is all volunteer work, or at most a >> modest stipend). >> >> For my money, these are critical questions - which remain unanswered. >> >> >> Surely, the PRT, which is implicitly all powerful, would need a new >> oversight mechanism over it! And who oversees THAT oversight body? >> >> EXACTLY - but the same can be said of the Contract Company. Who funds >> it, who monitors it. And do we not then wind up with accountability issues >> for ICANN AND its oversight body. >> >> >> >> >> *Customer Standing Panel (CSC) *It is unclear exactly what this body >> monitors. If it is JUST service levels committed to by IANA, the >> composition may be ok. But if it is also responsible for ensuring that IANA >> is following policy, then the composition MUST reflect the >> multi-stakeholder body or bodies that created such policy. You cannot >> presume that the customers, who may have been vehemently opposed to any >> specific policy, will report that such a policy is not being policy. If the >> CSC is NOT monitoring adherence to policy, then who is? It does not seem to >> be covered in the proposal. During e-mail discussions, someone said it was >> the job of the (for the gTLD space) GNSO. But it does not have the staff or >> Bylaw mandate to do so, nor would it have any standing to complain to >> whoever it is that would attempt enforcement (the PRT??). >> >> Absolutely agree. I think the problem with the concept is the word >> ‘customer’; it does not encompass all those who are impacted by IANA/ICANN >> decisions. And agree with the comment abut the GNSO. >> >> >> There is reference to Liaison from ACs and SOs on the CSC. In the ICANN >> context, a Liaison has no power other than that of persuasion. They have no >> power to act if they are in disagreement with the majority of the full >> members. >> >> Which is why a Standing Panel based on the MSM is the better model. >> >> >> >> >> *Cost *Cost has been mentioned briefly above, but it is a significant >> issue. Aside from the costs of the infrastructure we are discussing here, >> there is the cost of IANA. Currently this is funded by ICANN. If ICANN were >> to be taken out of the picture (and the possibility of doing that is the >> ONLY reason for building all of this), where does the funding come from? >> From ICANN, out of the goodness of its heart, despite no longer having ANY >> control over how much money is demanded or how it is spent? By the gTLD >> registries, who have said they would likely fund THEIR part of the costs, >> but not the entire thing. By the ccTLDs who have clearly said we should not >> depend on them (with a few exceptions)? >> >> WELL SAID >> >> >> >> >> *Acceptability *The last time I heard Larry Strickling talk about the >> stewardship transition, he said it would only take place if sufficient >> controls were put in place to address ICANN messing up (i.e., in the >> extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of >> the IANA stewardship - why else would we care about ICANN accountability if >> ICANN were not involved. From that, my take is they envision the IANA >> responsibility being transferred to ICANN. The Kelly bill clearly presumes >> this as well - why else would it be attempting to put so many constraints >> on ICANN? >> >> Again, well said >> >> >> It is not at all clear that a proposal such as one that the CWG has put >> in this draft would be acceptable to the US government. >> >> I don’t think it would be either. >> >> >> It will certainly not be a favoured proposal from the point of view of >> the ICANN Board (who may not have a direct say in this but cannot be >> totally ignored either). >> >> >> >> *Integratability *The ICG will be tasked with integrating the CWG >> proposal with that of the RIRs and the IETF. Although this is clearly their >> job and not ours, I have always believed that one needs to look ahead to >> ensure that there are no impassable roadblocks ahead. >> >> We do not definitively know what those proposals will be, but indications >> are emerging. Both bodies seem to be happy with how ICANN is managing IANA, >> but both feel that in the event of any untoward action, they could move the >> responsibility associated with their areas somewhere else. Since in both >> cases, it is the same body that sets the policy that would judge it, no >> great complexity is involved. In ICANN's case, since the bodies that set >> policy in the names space are (to a large extent) an integral part of >> ICANN, they cannot take action against their "parent" (so to speak). Thus >> this cumbersome alternative. >> >> Integrating these two approaches may be difficult. >> >> >> >> *Lost Opportunity *Part of the IANA Stewardship Transition is to put in >> place suitable ICANN accountability and governance changes so as to ensure >> the continuity of the IANA function. >> >> If all of the questions posed here, and the ones raised by others are >> addressed, we would end up moving from a situation where an entity (the >> NTIA of the US government) awards the IANA contract. The contract is >> currently held by ICANN but in theory at some future date, it could be >> awarded to some other organization, removing ICANN from any operational >> connection to ICANN. >> >> The new situation would be where Contract Co. awards the IANA contract. >> The contract will initially be held by ICANN but in theory at some future >> date, it could be awarded to some other organization, removing ICANN from >> any operational connection to ICANN. >> >> Notice the parallel wording. ICANN really has no motivation to change to >> effect this change. And in all likelihood any change associated with this >> transition will be minimal. >> >> If we go down the path of the current draft CWG proposal, I believe that >> a major opportunity will have been lost to reform ICANN. >> >> >> >> *Alternative *Simply criticizing the current CWG draft proposal is not >> particularly useful without alternatives. My alternative is certain to not >> please some of the parties in this discussion, but I believe that it is >> both possible and viable. >> >> All of the complexity of the CWG draft proposal is there to cover the >> eventuality that ICANN suddenly or gracefully stops performing the IANA >> function to the satisfaction of the community. That was indeed the >> situation a number of years ago, and ICANN took effective action to rectify >> the problems (that is, the NTI did not have to yank the contract to fix the >> problems). At the moment all parties seem to agree that there are no >> significant outstanding major problems, certainly none that could justify a >> change in the status quo. But there is a recurrent fear of "what if". What >> if ICANN had the IANA responsibility in perpetuity and stopped caring. Or >> had a Board that deliberately and without community support took action or >> inaction to harm how the IANA functions are carried out (the "rogue Board >> scenario). >> >> These worst case alternatives are indeed possible. And since under the >> current ICANN Bylaws, the Board is effectively sovereign, little could be >> done short of changing the Board over a period of 3+ years. >> >> And this is what worries Larry Strickling - what he said publicly at the >> last ICANN meeting. He does want a credible answer that will satisfy his >> masters (including Congress) >> >> >> I suggest that there are ways to alter ICANN's Bylaws to allow the >> effective control of an out-of-control Board. These mechanisms will not be >> particularly appreciated by the ICANN Board, but I believe that such >> measures (or something similar) would be adopted if that is what is >> required to be granted IANA. >> >> There are a number of components that I will describe. They are not >> necessarily a complete or even the correct set. Putting in place a complete >> set of cohesive recommendations is what the Accountability CCWG is being >> convened for. But the existence of the following as a starting point, I >> believe, demonstrates that there IS a way to proceed forward. >> >> - ACs and SOs must be given the ability to recall their sitting >> Board member. There will be no need to await the end of the current 3-year >> term. >> - Certain classes of decision regarding IANA can only be made with >> (for an example) a supermajority (2/3) of the Board's maximum >> Bylaw-mandated membership approving the decision. Without the bulk of the >> AC/SO Board members, there will not be a critical mass of Board members to >> take such a decision. >> - Certain classes of decision regarding IANA may only be made after >> notification period and public comment. This would allow the ACs and SOs >> sufficient time to act to recall their Board members >> - It is possible that the composition of the Board might need to be >> slightly altered to ensure that a recall of most but not all AC/SO Board >> members would be effective in halting action. Or a higher threshold than >> supermajority might be needed. >> - Bylaws regarding GAC advice related to IANA might need to >> somewhat altered to compensate for the GAC not having sitting Board members. >> - Similarly, non-affiliated ccTLDs would need to be worked into the >> equation. >> - If allowed under California law, the Bylaws could be require that >> under certain circumstances, a Board decision could be appealed to an >> external body (similar to the proposal's Independent Appeal for IANA >> decisions) and that the decision would be binding and enforceable in courts. >> >> I don’t think this is the entire answer BUT it goes a long way towards a >> workable response that can dovetail nicely with what both the numbers and >> protocols community are coming up with. >> >> Again, that you Alan - this is a really good summary of both concerns >> and a very positive way forward. >> >> >> _______________________________________________ >> CWG-Stewardship mailing list >> CWG-Stewardship@icann.org >> https://mm.icann.org/mailman/listinfo/cwg-stewardship >> >> >> >> _______________________________________________ >> CWG-Stewardship mailing list >> CWG-Stewardship@icann.org >> https://mm.icann.org/mailman/listinfo/cwg-stewardship >> >> > > > -- > > *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* > > *666 Third Avenue **ï** New York, NY 10017-5621* > > *Direct* 212-885-9253 *| **Main* 212-949-9022 > > *Fax* 212-949-9190 *|* *Cell *917-816-6428 > > *gsshatan@lawabel.com <gsshatan@lawabel.com>* > > *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * > > *www.lawabel.com <http://www.lawabel.com/>* > > > _______________________________________________ > CWG-Stewardship mailing listCWG-Stewardship@icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship > > > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship@icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship > >
Dear Guru, thank you for your kind follow-up and for your clear summary of the discussion. My answers in-line: On 30/11/2014 13:54, Guru Acharya wrote:
Olivier,
I think arguing about the dictionary definition of entities is not very constructive at this stage. Greg only wants to point out that for a Contracting Entity to enter into a contract, the said entity needs to have a legal existence.
I am not disputing this. What I am disputing is that we have not considered other kinds of process or structure that would be suitable, or whether the replacement for NTIA's pull out of its function needs a contracting structure as such. The online discussions we have had recently have gone much further than any prior discussion and that's good.
The other three entities (PRT,CSC, IAP) do not need to enter into a contract and therefore do not need legal existence. Not-for-profit company is how some of us think that legal existence can be operationalised for the Contracting Entity because such a not-for-profit company does not have owners, promoters or shareholders in the traditional sense. If you are suggesting another method of operationalising the legal existence I think everyone is open ears. In my opinion, a "trust" is not how that legal existence can be operationalised in the present context.
From what I understand there are two strong "non-negotiable" beliefs that exist in this CWG: 1) First belief is that an external IANA contract is essential for accountability. 2) Second belief is that the creation of a new legal entity with growth dynamics similar to that of ICANN is not acceptable.
I think you and some other at-large are coming from the second belief.
I would say that there are two points of view but I would summarise number 2 as "Second belief is that the creation of a new legal entity with growth dynamics similar to ICANN might not necessarily provide better accountability than the current ICANN". In short, today I am not convinced that any new entity will be more accountable than ICANN and I would like it explained to me why and how this new entity will be more accountable and to whom. I fear there may be a case of recursive accountability.
The current proposal attempts to make a very good balance between the two beliefs. And maybe we can work towards making the component of the proposal that operationalises the second belief even stronger. Currently, the Contract Co is made to look dull/boring/unattractive/growth-less by delegating everything of importance to the PRT. The Contract Co will only hold the contract while the PRT will do the actual work. We hope that this will stub the potential growth of Contract Co.
Maybe a constructive way forward is to suggest how the Contract Co can be made even more dull/boring/growth-less than presently envisioned.
Or you could take the un-constructive way forward and continue arguing that the first belief should not be incorporated in the proposal at all.
I find the discussion we are having here very constructive, save a few repeated arguments. But I am yet to be convinced by any facts, short of promises of the creation of a new dull/boring/unattractive organisation (possibly two in fact, since the Periodic Review Team may also be an Entity in the legal sense) that would be *more* accountable to the multistakeholder community than ICANN, an organisation that is about to undergo a full boost on accountability thanks to the CCWG on Accountability. If someone can convince me that they can build a more accountable organisation, please show me and I'll be ever so happy to support (1). A bird in hand is worth two in the bush. Kind regards, Olivier
Alan: Thank you for your email. My specific thoughts are inline below. I apologize for the length, but I have tried to be as comprehensive as possible within a reasonable timeframe. On Sat, Nov 29, 2014 at 12:23 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
As I have mentioned during the F2F meeting in Frankfurt and on the most recent teleconference, I have significant problems with the proposal currently on the table. I am taking this opportunity to present my concerns in somewhat more detail, and I will also present what I believe to be a viable alternative. The ideas presented are my own, but I do know that they are largely shared by my At-Large colleagues and by some others in the community.
I am also quite aware that my alternative options are likely to be vehemently opposed by some.
I should also add that there are aspects of the current draft CWG proposal that I strongly support. The Independent Appeals Panel is perhaps the most important one.
*Overview *Many of my concerns are due to the large number of "details" that are, as yet, unspecified. Perhaps some of my concerns will be negated once there are sufficient answers, but I have the nagging feeling that for many, there will be no viable answer.
GS: I do not share your pessimism. Indeed, I think that I have offered viable and sufficient answers in this email, and others have done so in their responses as well.
This message will necessarily be long - my apologies for that.
*Contract Co. *Many of the issues surround the "entity" (as it was referred to in Frankfurt). The draft somewhat glibly says that it will only sign the contract. But it seems to be outsourcing much of its responsibility to the Multistakeholder Periodic Review Team (PRT), and that seems problematic.
GS: I think this is more accurately characterized as delegating.
Perhaps the intent is not that all of these things go to the PRT, but there does not seem to be anywhere else for the functions to go. Among the tasks that it has outsourced are consultation regarding the contents of future RFPs, RFP issuance, RFP evaluation, contract negotiation and contract enforcement. What it cannot outsource is addressing legal issues such as being sued by a bidder who failed for win the contract and other such possibilities.
GS: This is fairly simple to resolve. The winning bidder must be required to indemnify, defend and hold harmless the PRT.
Whether it is possible to have such an empty company do all this remains to be demonstrated.
GS: Contract Co. will need to have just enough substance to accomplish these acts, all of which are well within the bounds of corporate authority. I see no reason why Contract Co. could not do all these things, while remaining a lightweight, constrained entity.
I will deal with problems with this outsourcing under the PRT.
The jurisdiction under which the company is registered has been the subject of some discussion. Clearly there are those who feel that under no conditions can it be the US. At the same time, there are some indications (such as terms in the Kelly bill) that imply that the US Government may not be willing to accept anything other than the US. Note that I understand that the Kelly bill itself may wither and die, but to quote Milton Meuller, "We should also pay attention to it because the bill provides a very good benchmark for preparing for the kind of questions that the NTIA is likely to be asked after they get a complete proposal from the ICG and begin to implement it. The Kelly bill can be considered a list of the concerns that US-based interests are going to be using to assess the final proposal. The GAO Report is equally important in this regard. Ignore them at your peril." (E-mail to the CWG-Stewardship list on 23 Nov 2014)
GS: There's no getting around the fact that jurisdiction will be perceived as an issue, and that it will need to be resolved. But that is true of any solution other than an "internal-to-ICANN" solution, which would keep everything in the US (unless, of course, you propose to move ICANN, which I am confident is out of our scope. In any event, I don't think that jurisdiction is as big an issue as some would like to think it is. But that's just me. Regardless, I don't think that jurisdiction can be raised in the abstract. The specific concerns raised by specific jurisdictions need to be explicitly stated.
Without details of exactly how this corporation will exist, it is impossible to assure oneself that it cannot be captured or controlled by some entity or government(s).
GS: Obviously, we all need to work on "connecting the dots" (i.e., filling in details). As I've mentioned before, the articles of incorporation and bylaws can be set up so that Contract Co. is essentially compelled to accept the decisions of the PRT with virtually no discretion. The particular actions that can and can't be taken by the directors can be carefully limited and circumscribed. This is quite commonly done when setting up corporations for specific purposes. In some cases, it is necessary that a company be "bankruptcy remote" (also sometimes referred to as "bankruptcy proof"). If so, there are a series of prohibitions, covenants and approvals baked into the bylaws that prevent the company from putting itself in the position to be declared bankrupt. There is also a prohibition against the directors changing the bylaws to try to defeat these prohibitions, covenants and approvals. Similarly, corporations are set up for specific purposes within the structure of a private equity fund or hedge fund; these corporations are also highly constrained in their actions. This is all well trod ground. I don't see how such a corporation could be "captured" or controlled by another entity or a government. However, without details of exactly how you expect this corporation to be captured, it is impossible to see whether this is a credible threat at all, even before putting in constraining and limiting controls. Without details, "capture" -- like "jurisdiction" -- is just a word being used as a bogeyman or a rallying cry, stirring emotion but conveying no useful information.
Running IANA will be a treasured target by some countries and we do not know what lengths they would go to capture the contract. NTIA had the strength of the US (and its battleships and such) behind it.
GS: Until this point, I had thought you were using the term "capture" metaphorically. Now I fear that you are using it literally. I do not think that Contract Co. needs to raise a standing army or build a fleet of battleships. Indeed, I can't think of an instance where a corporation has resorted to physical force to avoid "capture." I do recognize that there are certain countries in the world where companies have been "de-privatized." We should avoid those. More practically, it should be set forth as a requirement that any respondent to an RFP must not be a government or intergovernmental body, just as NTIA required, and have protections in place to assure Contract Co./PRT that it cannot later be captured.
Contract Co. will not.
GS: It will not need to (especially the battleships part). It will be set up to eliminate opportunities for capture, and it will have the protection of the rule of law.
There has been no discussion about how this entity, or any part of the overall proposal, is funded. More on this later.
*Multistakeholder Periodic Review Team (PRT) *The PRT is effectively the operational arm of Contract Co. It is the entity that makes decision for Contract Co., presumably including those related to the RFP, contract negotiations, contract enforcement and much more. But by its very name, it is Periodic. It does not exist at all times and there are some in the community that have said it should be re-constituted afresh every time it is needed (perhaps like the Phoenix born from the ashes of its predecessor). I fail to understand to how it can take action on problems if it is not an ongoing entity.
GS: I think that it is fairly clear that the PRT has to be in a state of readiness in order to deal with "non-periodic" events. On the other hand, we don't want the PRT to feel the need to justify its existence or fill monthly meeting agendas or expand its scope. These can be controlled by the PRT's organizing documents (perhaps a charter).
The description says that it is a "body" with representatives selected by the relevant bodies. Accepting that "relevant" is to be decided later, it is unclear under whose auspices this body is convened, and how we can ensure that it remains free from capture or malformation. It was suggested in Frankfurt that this body could be akin to (or even identical to) the IANA-CWG, but given that the entire concept of this elaborate infrastructure is to allow ICANN to be completely excluded from the IANA management process, presumably because it has ceased to carry out this function as well as all parties claim it is now doing, what makes us think that ICANN would take responsibility for this, or more to the point, could be trusted to do it properly?
GS: In terms of capture or malformation, I think the answer lies first in the basic precepts of "multistakeholderism," which I am a strong believer in, even when I disagree with a particular result. Broadly speaking, by constituting the team from a diverse set of stakeholder groups and organizations, which formally select the members, you have de facto checks and balances, as the members and their organizations have different interests and are keeping a wary eye on the organization to see if is going adrift or being pulled out of alignment. The composition of the group must also be calibrated to avoid giving too much power to anyone stakeholder group or set of naturally aligned stakeholder groups. Finally, you have to give the organizations the ability to pull their representative if he/she goes "rogue" (to borrow one of your suggestions for the ICANN Board). In order to capture such a group, you would need to capture enough members to achieve consensus (i.e., a significant majority, to say the least), which in turn would mean capturing a series of diverse, disparate and sometimes opposed groups and organizations. I think this might have happened in Star Wars -- but even in fiction, it took three movies for Senator Palpatine to become Emperor Palpatine, as well as acts of war to suspend the multistakeholder model of the Galactic Senate. I don't see this happening in reality, unless the Dark Lords of the Sith are among us. Seriously, though, I think we have to have some faith in the multistakeholder model, not just for the PRT, but for the future of Internet Governance generally. As for whether the PRT could be akin to the CWG -- that does not imply that the PRT would be under the ICANN umbrella. I think the point was more one of composition. However, now that you raise the point, this might be a valid alternative. I think it is important to distinguish between "ICANN the corporation" and "ICANN the community". An ICANN multistakeholder group is not the same as ICANN the corporation, which what I think you refer to when you say ICANN above. So, while ICANN the corporation may not be "trusted to do it properly," I have a much higher degree of confidence that a multistakeholder group will, whether or not it takes some shelter under the ICANN umbrella. That does not mean these are the only alternatives. The PRT could exist without being aligned with any other organization, it could be a committee under the auspices of Contract Co., or it could even become aligned with another existing organization (e.g., ISOC).
So how this body, which is the critical keystone [ http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this entire superstructure depends, constituted, and funded. And how does one ensure that it is not corrupted, or captured?
GS: I believe I've answered this above. Any further details on corruption or capture scenarios would be appreciated (but leave out the battleships, please).
Or sued. A body as large as it will have to be will require infrastructure such as a secretariat - how do we ensure that IT is not subverted (just look at all the effort that has gone into ensuring an independent ICG secretariat)?
GS: I have my own opinions about the necessity of the effort that the ICG took to ensure an independent secretariat (but maybe they had the time to turn to such efforts). Nonetheless, it may provide some useful lessons on doing so, and such things are always much easier the second time around.
And without a corporate backing of the PRT, its members would be personally liable in the case of a lawsuit. Who would want to serve on such a group? Moreover, in an environment where the PRT is taking very significant decisions, both financial offers and personal threats would be an effective method of capture (and presumably this is all volunteer work, or at most a modest stipend).
GS: Assuming arguendo that PRT is not aligned with any other body, Contract Co. could purchase insurance to cover the PRT members, naming them as additional insureds. By the way, has anyone checked how we are protected from personal liability and the possibility of being sued? Does ICANN carry "multistakeholder insurance?" I would also be curious to know whether anyone in this group has been subject to financial offers or personal threats in order to capture them. I, for one, have not. A funny thing, too -- in those instances where capture occurs (say, soccer referees or baseball teams) its usually pretty obvious when they go from free will to puppetry. Now, when you get to spycraft and other dark arts, it may be more difficult, but I still think we are straying into the realm of fiction here.
Surely, the PRT, which is implicitly all powerful, would need a new oversight mechanism over it! And who oversees THAT oversight body?
GS: Surely not. First, the PRT is not all powerful, implicitly or otherwise. Its members must answer to their constituents. Similarly, the oversight mechanism over the PRT is the diverse collection of stakeholder groups and communities, not a body. And no further body is needed after that. The threat of "infinite oversight" is a myth.
*Customer Standing Panel (CSC) *It is unclear exactly what this body monitors. If it is JUST service levels committed to by IANA, the composition may be ok. But if it is also responsible for ensuring that IANA is following policy, then the composition MUST reflect the multi-stakeholder body or bodies that created such policy.
GS: I personally agree that there should be multistakeholder representation of some sort on the CSC. But this is still an open issue.
You cannot presume that the customers, who may have been vehemently opposed to any specific policy, will report that such a policy is not being policy. If the CSC is NOT monitoring adherence to policy, then who is? It does not seem to be covered in the proposal.
GS: The NTIA currently monitors policy adherence to an extent, at least with regard to delegations and redelelegations. The Del/Redel report must describe how the del/redel follows existing policy. While we haven't nailed this down yet, I believe that receiving and reviewing Del/Redel reports goes to the CSC in the first instance, and can be escalated to the PRT if need be. As to whether the CSC will report that policy is not being followed -- if it doesn't, it risks destroying its own legitimacy. That's a pretty big risk to take.
During e-mail discussions, someone said it was the job of the (for the gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so, nor would it have any standing to complain to whoever it is that would attempt enforcement (the PRT??).
GS: The GNSO Council has in fact raised policy concerns regarding various gTLD implementations and proposals. I believe this is well within its mandate, and it is worth considering whether the GNSO Council should have standing to raise these concerns to the PRT and/or the IAP.
There is reference to Liaison from ACs and SOs on the CSC. In the ICANN context, a Liaison has no power other than that of persuasion. They have no power to act if they are in disagreement with the majority of the full members.
GS: In that case, it may be more appropriate for these to be members of, rather than liaisons to, the CSC. However, I would note that liaisons do have the power of persuasion, which you used quite effectively on the GNSO Council. Finally, I would doubt that the CSC would be able to act by simple majority,
*Cost *Cost has been mentioned briefly above, but it is a significant issue. Aside from the costs of the infrastructure we are discussing here, there is the cost of IANA. Currently this is funded by ICANN. If ICANN were to be taken out of the picture (and the possibility of doing that is the ONLY reason for building all of this), where does the funding come from? From ICANN, out of the goodness of its heart, despite no longer having ANY control over how much money is demanded or how it is spent? By the gTLD registries, who have said they would likely fund THEIR part of the costs, but not the entire thing. By the ccTLDs who have clearly said we should not depend on them (with a few exceptions)?
GS: I agree that funding is an aspect that needs more attention. But the fact that we haven't yet turned to this in detail does not disqualify the proposal in any way. Contract Co. is granting ICANN a valuable right -- the right to perform a valuable service. If ICANN paid a fee for that right, it would not be out of the goodness of its heart. There's no such thing as a free lunch. I'm confident that we will find a way to deal with this, given the value that is inherent in the IANA Functions.
*Acceptability *The last time I heard Larry Strickling talk about the stewardship transition, he said it would only take place if sufficient controls were put in place to address ICANN messing up (i.e., in the extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of the IANA stewardship - why else would we care about ICANN accountability if ICANN were not involved. From that, my take is they envision the IANA responsibility being transferred to ICANN. The Kelly bill clearly presumes this as well - why else would it be attempting to put so many constraints on ICANN?
GS: I disagree with this assumption entirely as I said to Holly earlier. The NTIA is looking to transition stewardship of the IANA Function to the global multistakeholder community, not to ICANN . It is not at all clear that a proposal such as one that the CWG has put in
this draft would be acceptable to the US government.
GS: My crystal ball is at least as cloudy as yours, but I predict that a proposal that failed to transition NTIA's role to the global multistakeholder community, and instead transferred it directly into the hands of ICANN, would be far more likely to be unacceptable to the US government. This could be the "internal to ICANN" concept's fatal flaw.
It will certainly not be a favoured proposal from the point of view of the ICANN Board (who may not have a direct say in this but cannot be totally ignored either).
GS: This may be true, but we would be betraying our mandate and our constituents if we decided that our aim was to please the Board. In any event, I have faith (perhaps more than you) that the Board isn't going to try to stop a disfavored proposal. That would raise quite a ruckus, if ICANN the corporation were to turn on ICANN the community. Remember, this is not just one SO or AC, which the Board may choose to ignore at some peril. We are the massed army of stakeholders (unless, of course, we are riven by division, which would be far more than unfortunate -- as Milton notes elsewhere, the vultures are circling, and if the Board has indigestion, that is the least of our worries.
*Integratability *The ICG will be tasked with integrating the CWG proposal with that of the RIRs and the IETF. Although this is clearly their job and not ours, I have always believed that one needs to look ahead to ensure that there are no impassable roadblocks ahead.
We do not definitively know what those proposals will be, but indications are emerging. Both bodies seem to be happy with how ICANN is managing IANA, but both feel that in the event of any untoward action, they could move the responsibility associated with their areas somewhere else. Since in both cases, it is the same body that sets the policy that would judge it, no great complexity is involved. In ICANN's case, since the bodies that set policy in the names space are (to a large extent) an integral part of ICANN, they cannot take action against their "parent" (so to speak). Thus this cumbersome alternative.
Integrating these two approaches may be difficult.
GS: It might be difficult; it might not. As you note, names is differently situated than the other two areas. Therefore, a one size fits all approach was always unlikely. By creating Contract Co. and the PRT, we are actually closer to the model of the other two areas, which should make integration easier, not harder.
*Lost Opportunity *Part of the IANA Stewardship Transition is to put in place suitable ICANN accountability and governance changes so as to ensure the continuity of the IANA function.
If all of the questions posed here, and the ones raised by others are addressed, we would end up moving from a situation where an entity (the NTIA of the US government) awards the IANA contract. The contract is currently held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
The new situation would be where Contract Co. awards the IANA contract. The contract will initially be held by ICANN but in theory at some future date, it could be awarded to some other organization, removing ICANN from any operational connection to ICANN.
Notice the parallel wording. ICANN really has no motivation to change to effect this change. And in all likelihood any change associated with this transition will be minimal.
GS: I think you probably meant to say IANA at the end of each of those paragraphs, rather than ICANN. In any event, I understand the concept of leverage here. I think we exercise that leverage along the lines that the two CWG's work is "interrelated and interdependent" and that Stream 1 accountability has to be resolved before there is a transition. We can't try to reform all of ICANN ourselves from the platforrm and mandate of transitioning NTIA stewardship. That would be massive mission creep. There is a careful balance here in using the IANA Transition to ensure that Enhanced ICANN Accountability is not just an empty phrase, but that balance is lost if we put forth a plan that does not really transition NTIA's roles and that reaches far beyond our mandate in order to enact major reforms. We cannot do the job of the ICG or the Accountability CWG, but we do depend on them both to do their jobs right. Furthermore, I don't think Contract Co. is the status quo. The NTIA is controlled by the US Government. Contract Co. is controlled by the multistakeholder community. What makes you think we will sit on our collective hands? Also, I anticipate that the contract will have more "teeth" in it to enforce accountability (including termination for breach, which is absent from the current NTIA agreement except in extremely narrow circumstances).
If we go down the path of the current draft CWG proposal, I believe that a major opportunity will have been lost to reform ICANN.
GS: I disagree for the reasons stated above. We in this CWG may have lost that major opportunity, but the ICANN community has not lost that opportunity. It's right next door in the Accountability CWG. What we have not lost is the ability to use our leverage judiciously to support the "interrelated and interdependent efforts" of the CWG Accountability. And they way we can lose that is to be overtaken by internal divisions, failing to meet our timeline, and squandering our legitimacy. Frankly, I don't think that is what's happening here -- there's a reason that ICANN consensus is "rough" -- some divergence is expected, but the show must go on. Only where this true divergence (i.e., no view predominates) or strong opposition.does the show not go on. While I agree with Chuck that a formal consensus call is premature, I think that in the fullness of time and through our continuing good faith efforts, we will get there in good shape.
*Alternative *Simply criticizing the current CWG draft proposal is not particularly useful without alternatives.
GS: Alternatives can be helpful. So can suggestions for improvement. These can come from adapting certain aspects of alternatives, as has already happened. It can also happen when people who look for problems also look for solutions.
My alternative is certain to not please some of the parties in this discussion, but I believe that it is both possible and viable.
All of the complexity of the CWG draft proposal is there to cover the eventuality that ICANN suddenly or gracefully stops performing the IANA function to the satisfaction of the community.
GS: I disagree, and I think this mischaracterizes both the proposal and the work that led to it. The framework of the CWG draft proposal is there first to replace the NTIA's roles. As you will recall, we spent a couple of hours defining the various roles that NTIA currently performs in relation to IANA. The CWG structure was then fit to those roles. Dealing with non-performance is built into the framework as well, but it is hardly the sole reason for it.
That was indeed the situation a number of years ago, and ICANN took effective action to rectify the problems (that is, the NTI did not have to yank the contract to fix the problems). At the moment all parties seem to agree that there are no significant outstanding major problems, certainly none that could justify a change in the status quo. But there is a recurrent fear of "what if". What if ICANN had the IANA responsibility in perpetuity and stopped caring. Or had a Board that deliberately and without community support took action or inaction to harm how the IANA functions are carried out (the "rogue Board scenario).
These worst case alternatives are indeed possible. And since under the current ICANN Bylaws, the Board is effectively sovereign, little could be done short of changing the Board over a period of 3+ years.
I suggest that there are ways to alter ICANN's Bylaws to allow the effective control of an out-of-control Board. These mechanisms will not be particularly appreciated by the ICANN Board, but I believe that such measures (or something similar) would be adopted if that is what is required to be granted IANA.
GS: I think that you have taken your boat of the CWG's waters with this statement. Accountability is part of our responsibility, but it is accountability relating to the IANA Functions. Using that responsibility to try to re-make ICANN from our group is a massive overreach. We (individually) can be part of that grander effort by participating in the CWG on Accountability, and as a group, by maintaining that Stream 1 must be resolved before the transition takes place.
There are a number of components that I will describe. They are not necessarily a complete or even the correct set. Putting in place a complete set of cohesive recommendations is what the Accountability CCWG is being convened for. But the existence of the following as a starting point, I believe, demonstrates that there IS a way to proceed forward.
- ACs and SOs must be given the ability to recall their sitting Board member. There will be no need to await the end of the current 3-year term. - Certain classes of decision regarding IANA can only be made with (for an example) a supermajority (2/3) of the Board's maximum Bylaw-mandated membership approving the decision. Without the bulk of the AC/SO Board members, there will not be a critical mass of Board members to take such a decision. - Certain classes of decision regarding IANA may only be made after notification period and public comment. This would allow the ACs and SOs sufficient time to act to recall their Board members - It is possible that the composition of the Board might need to be slightly altered to ensure that a recall of most but not all AC/SO Board members would be effective in halting action. Or a higher threshold than supermajority might be needed. - Bylaws regarding GAC advice related to IANA might need to somewhat altered to compensate for the GAC not having sitting Board members. - Similarly, non-affiliated ccTLDs would need to be worked into the equation. - If allowed under California law, the Bylaws could be require that under certain circumstances, a Board decision could be appealed to an external body (similar to the proposal's Independent Appeal for IANA decisions) and that the decision would be binding and enforceable in courts.
GS: I think your second and third suggestions might have a place in the work of our group, and perhaps the one about GAC advice related to IANA (but the motivation for that suggestion is still fuzzy to me). The rest of these fall outside our mandate. If we were watching an ICANN Board Committee with our mandate use that mandate to remake broad swaths of ICANN governance with no direct relationship to IANA, the multistakeholder howls would be deafening. What I found most disappointing when I reached the end of this email for the first time, was that there is really no proposal here. As noted above, we noted several roles (we called them "functions" in Frankfurt, but I think that leads to confusion with the IANA Functions) that the NTIA plays and that need to be replaced in some form (not necessarily on an exact parallel basis, but they need to be dealt with and their raisons d'etre need to be considered and carried through to any proposal). For convenience, I will repeat our list of NTIA roles below: *#1 – APPROVAL FUNCTION OF CHANGES TO THE ROOT ZONE * *#2 - PERFORMANCE REVIEW FUNCTION * Periodic Review Transactional Performance review (SLAs) Perform (technical) audits and customer surveys *#3 - CONTRACTING FUNCTION (ability to enter into a contract)* Determining the substance of the contract Award / renewal of contract Understand what stakeholder concerns are Issuance of RFPs Contracting Ability to seek public comments *#4 – ENFORCEMENT OF THE CONTRACT FUNCTION (incl. renewal/rebidding)* Termination of contract; Ability to enforce Ability to seek public comments Ability to determine whether contract should be terminated, including hearing of complaints Listen to community and act on its behalf Regrettably, I think your Alternative skips over all of this, perhaps due to eagerness to fix ICANN (which many of us are eager to do in one way or another). Unfortunately, joining this CWG meant that we must deal with "nuts and bolts" issues relating to the NTIA's transition of its role to the global multistakeholder community. Your email is devoid of any resolution for replacing these functions currently carried out by NTIA. There are a variety of resolutions that can be imagined in an "internal to ICANN" proposal -- jobs to be taken over, processes to be built or adapted, documents to be written, working groups to be formed, dispute resolution procedures to be crafted, These could be configured in a number of different ways. Unfortunately, you have not provided us with a framework for any of this. Certainly, an "internal to ICANN" proposal would match up to each of these points in ways that are not quite as obvious as the current CWG proposal. For instance, in the absence of a contract, "determining the substance of the contract" is not directly applicable. However, the contract is the vehicle for setting forth ICANN's obligations regarding IANA. Without a contract, these obligations need to go somewhere, as does the ability to enforce them. So the "substance" still needs to be determined -- it just won't be in a contract (not likely anyway, but it's your proposal). Who will make this determination? How will this be vetted through multistakeholder processes? What document will contain this substance? How will it be enforced? I could go on, but I'm sure you get the point. So, I'm not sure what your Alternative is, but it is not an alternative to the CWG Proposal. If this were a Venn diagram, the two circles would be barely overlapping. As I stated in another thread "I don't think an "internal to ICANN" proposal was ever put on the table within the group prior to Frankfurt in any kind of tangible, concrete fashion." I will add now that I think that an "internal to ICANN" proposal still has not been put on the table within the group in any kind of tangible, concrete fashion -- which leaves us dancing with ghosts -- something out of which no progress can be derived, unfortunately. Greg
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On 01-Dec-14 19:22, Greg Shatan wrote:
I fail to understand to how it can take action on problems if it is not an ongoing entity.
GS: I think that it is fairly clear that the PRT has to be in a state of readiness in order to deal with "non-periodic" events. On the other hand, we don't want the PRT to feel the need to justify its existence or fill monthly meeting agendas or expand its scope. These can be controlled by the PRT's organizing documents (perhaps a charter).
I very much agree with the sentiment. While I beleive that it can be called into service rather quickly, look at how quickly the ICG was constituted, this does not not need to be a deal killer. There could be condition put in its charter that restricts the ability of the MRT to give itself further powers or scope, with clauses saying that while it is constituted on, lets say, a yearly basis and on call should the CSC raise an alert, it does not meet unless it is there is an issue. avri
At 01/12/2014 06:03 PM, Avri Doria wrote:
On 01-Dec-14 19:22, Greg Shatan wrote:
I fail to understand to how it can take action on problems if it is not an ongoing entity.
GS: I think that it is fairly clear that the PRT has to be in a state of readiness in order to deal with "non-periodic" events. On the other hand, we don't want the PRT to feel the need to justify its existence or fill monthly meeting agendas or expand its scope. These can be controlled by the PRT's organizing documents (perhaps a charter).
I very much agree with the sentiment.
While I beleive that it can be called into service rather quickly, look at how quickly the ICG was constituted, this does not not need to be a deal killer. There could be condition put in its charter that restricts the ability of the MRT to give itself further powers or scope, with clauses saying that while it is constituted on, lets say, a yearly basis and on call should the CSC raise an alert, it does not meet unless it is there is an issue.
avri
I guess "quickly", like many things, is in the eye of the beholder. A group that exists but does not meet is fine with me. My personal recommendation would be to have it schedule meetings and then cancel if there is nothing on the agenda, but that is fine tuning. Alan
participants (14)
-
Alan Greenberg -
Avri Doria -
Eduardo Diaz -
Gomes, Chuck -
Greg Shatan -
Guru Acharya -
Holly Raiche -
Jordan Carter -
Malcolm Hutty -
Martin Boyle -
Milton L Mueller -
Olivier MJ Crepin-Leblond -
Phil Corwin -
Seun Ojedeji