On "Entity" and incorporation - key questions to frame our discussion
Dear Greg, dear all, Two things: 1) a comment on the notion of "entity" and 2) a few key questions that I would like to see clearly answered to move forward *1) ON THE NOTION OF "ENTITY" AND COMMON UNDERSTANDING* In your exchange below with Holly, you mentioned two definitions of the term "entity". She rightly pointed there were of two types: one from a legal perspective and another one a more general, layman's perspective. Naturally, the first one (the legal one) focuses on incorporation, with mentions such as "separate existence for tax purposes". The second one, however, from the Merriam-Webster was more generic: *1 a : being <http://www.merriam-webster.com/dictionary/being>, existence <http://www.merriam-webster.com/dictionary/existence>; especially : independent, separate, or self-contained existence* *b : the existence of a thing as contrasted with its attributes* *2: something that has separate and distinct existence and objective or conceptual reality* *3: an organization (as a business or governmental unit) that has an identity separate from those of its members* I have a simple question: is the IETF an "entity" acccording to that definition, although it is not incorporated? I believe the answer is yes. As you know, the W3C, at least for a long period of time, was not incorporated, relying on three separate MoUs with "host" structures. (It may have changed since then but that was the case for several years). Isn't the W3C an "entity" for the purpose of the discussion we're having? Likewise, aren't the gNSO and the ccNSO, "organizations" (it is in their name) that have "an identity separate from those of (their) members", and "something that has a separate and distinct existence and objective or conceptual reality", and a "self-contained existence"? And therefore "entities" in light of the MW definition above? You may have had a legal meaning in mind for the term "entity" because of your own background but it seems clear that in Frankfurt, several people clearly understood the word in its more general meaning. *2) KEY QUESTIONS* In my view, the core of the discussion here can be summarized as follows: 1) *Is incorporation required to "contract"?* Given that the IETF seems to have an MoU with ICANN (among other arrangements with other "entities"), I would suppose that the answer is no. Can someone clarify this important point? 2) If the answer above is indeed no, is there any practical, legal or other constraint that would *expressly forbid IETF, the NRO (or ASO), the ccNSO and the gNSO to have each an MoU* with ICANN or any other contractor for the IANA functions? 3) If the answer to 2) above is no, what are *the pros and cons to establishing instead a specific contracting Corporation*, in terms of simplicity, compatibility between the mechanisms for the different groups (parameters, numbers, names), guarantee of accountability, stability and security of the system. Unless these questions are clearly answered, I am afraid we will be running in circles and losing time. Thanks for the feedback. Best Bertrand "*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de Saint Exupéry ("*There is no greater mission for humans than uniting humans*")BERTRAND DE LA CHAPELLEInternet & Jurisdiction Project | Director On Sun, Nov 30, 2014 at 7:42 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Holly and all:
If we are turning to the dictionary, please consider the following:
Entity
*A real being; existence. An organization or being that possesses separate existence for tax purposes. Examples would be corporations, partnerships, estates, and trusts. The accounting entity for which accounting statements are prepared may not be the same as the entity defined by law.*
Entity *includes corporation and foreign corporation; not-for-profit corporation; profit and not for-profit unincorporated association;* Business Trust <http://legal-dictionary.thefreedictionary.com/Business+Trust>, *estate, partnership, trust, and two or more persons having a joint or common economic interest; and state, U.S., and foreign governments.*
*An existence apart, such as a corporation in relation to its stockholders.*
*Entity includes person, estate, trust, governmental unit.* West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
This is what I mean when I say "entity." I'll try to say "legal entity" to avoid any doubt in future. But there was no doubt in my mind (or many others) that when we were talking about creating an entity -- and in particular, an entity that could enter into a contract -- that this is what we were talking about.
For what it's worth, the Merriam-Webster's definition that I found first when searching the Internet is as follows:
1* a* *:* being <http://www.merriam-webster.com/dictionary/being>, existence <http://www.merriam-webster.com/dictionary/existence>; *especially* *:* independent, separate, or self-contained existence *b* *:* the existence of a thing as contrasted with its attributes 2*:* something that has separate and distinct existence and objective or conceptual reality 3*:* an organization (as a business or governmental unit) that has an identity separate from those of its members
Greg
On Sat, Nov 29, 2014 at 11:16 PM, Holly Raiche <h.raiche@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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Bertrand, I think your question has already been answered 1) Is incorporation required to "contract"? Given that the IETF seems to have an MoU with ICANN (among other arrangements with other "entities"), I would suppose that the answer is no. Can someone clarify this important point? MM: Yes, it is. IETF contracts via ISOC.
I am afraid this is not that clear.
From what I have been told by someone knowledgeable, the IETF is not per se incorporated, and the MoU was signed by the President of ICANN (a legal entity) and the Chairs of the IETF and the Internet Architecture Board (neither of which is a legal entity). It was not through ISOC in that case, although ISOC does provide the IETF a lot of support and contracting capacity in other areas.
In any case, my question is a more general one. Is incorporation required to "contract"? If this is really required, how did the W3C manage to organize itself during many years, simply by having a series of "host agreements" with three universities? I am a bit stubborn, but I am afraid we are not answering this in full detail. B. "*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de Saint Exupéry ("*There is no greater mission for humans than uniting humans*")BERTRAND DE LA CHAPELLEInternet & Jurisdiction Project | Directoremail bdelachapelle@internetjurisdiction.netemail bdelachapelle@gmail.comtwitter @IJurisdiction <https://twitter.com/IJurisdiction> | @bdelachapelle <https://twitter.com/bdelachapelle>mobile +33 (0)6 11 88 33 32 www.internetjurisdiction.net[image: A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS] On Mon, Dec 1, 2014 at 5:16 PM, Milton L Mueller <mueller@syr.edu> wrote:
Bertrand,
I think your question has already been answered
1) *Is incorporation required to "contract"?* Given that the IETF seems to have an MoU with ICANN (among other arrangements with other "entities"), I would suppose that the answer is no. Can someone clarify this important point?
MM: Yes, it is. IETF contracts via ISOC.
Bertrand, *1) About W3C* W3C enters MoUs using its host organisations (MIT,ERCIM and Keio) as legal vehicles. See for example http://www.w3.org/2004/05/W3C-OMA-Agreement-FINAL.html I am of the opinion that MoUs that W3C enters without using host organisations as legal vehicles will not be legally enforceable. *2) About IETF* Substantial concerns were raised about the IETF MoU (as proposed) not being legally enforceable. See www.ietf.org/mail-archive/web/ianaplan/current/msg01370.html Greg, in another mail, had highlighted the essential components for any MoU/SLA/etc to amount to a enforceable contract. I believe both parties being legal entities (or at least fictionally treated so by law) is a necessary criteria. One way of enforcing a MoU between GNSO (as an internal structure of ICANN) and IANA (as an internal division of ICANN) is that the MoU can be given sanctity through ICANN by-laws. Unfortunately, by-laws can easily be changed raising serious accountability issues. On Mon, Dec 1, 2014 at 9:58 PM, Bertrand de La Chapelle < bdelachapelle@gmail.com> wrote:
I am afraid this is not that clear.
From what I have been told by someone knowledgeable, the IETF is not per se incorporated, and the MoU was signed by the President of ICANN (a legal entity) and the Chairs of the IETF and the Internet Architecture Board (neither of which is a legal entity). It was not through ISOC in that case, although ISOC does provide the IETF a lot of support and contracting capacity in other areas.
In any case, my question is a more general one. Is incorporation required to "contract"?
If this is really required, how did the W3C manage to organize itself during many years, simply by having a series of "host agreements" with three universities?
I am a bit stubborn, but I am afraid we are not answering this in full detail.
B.
"*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de Saint Exupéry ("*There is no greater mission for humans than uniting humans*")BERTRAND DE LA CHAPELLEInternet & Jurisdiction Project | Directoremail bdelachapelle@internetjurisdiction.netemail bdelachapelle@gmail.com twitter @IJurisdiction <https://twitter.com/IJurisdiction> | @bdelachapelle <https://twitter.com/bdelachapelle>mobile +33 (0)6 11 88 33 32www.internetjurisdiction.net[image: A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS]
On Mon, Dec 1, 2014 at 5:16 PM, Milton L Mueller <mueller@syr.edu> wrote:
Bertrand,
I think your question has already been answered
1) *Is incorporation required to "contract"?* Given that the IETF seems to have an MoU with ICANN (among other arrangements with other "entities"), I would suppose that the answer is no. Can someone clarify this important point?
MM: Yes, it is. IETF contracts via ISOC.
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I reproduce Greg's mail on this list earlier: <quote> Some important basic legal points: 1. An MOU is a contract. It may leave more to the imagination than a longer, more detailed document, but it is a contract. Proposing an MOU does nothing to move us away from having a contract. Generally, all you need to have a contract between two parties (more on that in a moment), is an offer, the acceptance of that offer, some form of "consideration" (quid pro quo or "this for that") and the intent to enter into a binding agreement. If you have these four things, you will have an enforceable contract. This is of course very high level, and there are many nuances, qualifications, details, exceptions, etc. (one could spend a lifetime on the subject, if one wanted), but these are the basics. On the other hand, if you don't have these things, you don't have a contract, and you have nothing that binds the parties to perform their duties and obligations and nothing that can be enforced -- a party can fail to perform and walk away without consequences (as a legal matter). Again, these are the basic concepts. So -- if you want something that is not a contract, what you end up with is something that is not a promise and that can't be enforced if a party fails to perform. And why would you want that here? 2. Getting back to the concept of "parties" to a contract: only "natural persons" (that is, people) and *l*egal entities can enter into contracts. Corporations and partnerships are legal entities; communities and committees are not legal entities. Therefore, communities and committees cannot enter into contracts. A legal entity of some sort is needed if a contract is to be entered into. </quote> On Mon, Dec 1, 2014 at 10:38 PM, Guru Acharya <gurcharya@gmail.com> wrote:
Bertrand,
*1) About W3C* W3C enters MoUs using its host organisations (MIT,ERCIM and Keio) as legal vehicles. See for example http://www.w3.org/2004/05/W3C-OMA-Agreement-FINAL.html I am of the opinion that MoUs that W3C enters without using host organisations as legal vehicles will not be legally enforceable.
*2) About IETF* Substantial concerns were raised about the IETF MoU (as proposed) not being legally enforceable. See www.ietf.org/mail-archive/web/ianaplan/current/msg01370.html
Greg, in another mail, had highlighted the essential components for any MoU/SLA/etc to amount to a enforceable contract. I believe both parties being legal entities (or at least fictionally treated so by law) is a necessary criteria.
One way of enforcing a MoU between GNSO (as an internal structure of ICANN) and IANA (as an internal division of ICANN) is that the MoU can be given sanctity through ICANN by-laws. Unfortunately, by-laws can easily be changed raising serious accountability issues.
On Mon, Dec 1, 2014 at 9:58 PM, Bertrand de La Chapelle < bdelachapelle@gmail.com> wrote:
I am afraid this is not that clear.
From what I have been told by someone knowledgeable, the IETF is not per se incorporated, and the MoU was signed by the President of ICANN (a legal entity) and the Chairs of the IETF and the Internet Architecture Board (neither of which is a legal entity). It was not through ISOC in that case, although ISOC does provide the IETF a lot of support and contracting capacity in other areas.
In any case, my question is a more general one. Is incorporation required to "contract"?
If this is really required, how did the W3C manage to organize itself during many years, simply by having a series of "host agreements" with three universities?
I am a bit stubborn, but I am afraid we are not answering this in full detail.
B.
"*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de Saint Exupéry ("*There is no greater mission for humans than uniting humans*")BERTRAND DE LA CHAPELLEInternet & Jurisdiction Project | Directoremail bdelachapelle@internetjurisdiction.netemail bdelachapelle@gmail.com twitter @IJurisdiction <https://twitter.com/IJurisdiction> | @bdelachapelle <https://twitter.com/bdelachapelle>mobile +33 (0)6 11 88 33 32www.internetjurisdiction.net[image: A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS]
On Mon, Dec 1, 2014 at 5:16 PM, Milton L Mueller <mueller@syr.edu> wrote:
Bertrand,
I think your question has already been answered
1) *Is incorporation required to "contract"?* Given that the IETF seems to have an MoU with ICANN (among other arrangements with other "entities"), I would suppose that the answer is no. Can someone clarify this important point?
MM: Yes, it is. IETF contracts via ISOC.
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
Bertrand: I think these questions have been asked and answered several times (including by me in a response to an earlier email), but I"ll do it again. Responses inline. On Mon, Dec 1, 2014 at 11:10 AM, Bertrand de La Chapelle < bdelachapelle@gmail.com> wrote:
Dear Greg, dear all,
Two things: 1) a comment on the notion of "entity" and 2) a few key questions that I would like to see clearly answered to move forward
*1) ON THE NOTION OF "ENTITY" AND COMMON UNDERSTANDING*
In your exchange below with Holly, you mentioned two definitions of the term "entity". She rightly pointed there were of two types: one from a legal perspective and another one a more general, layman's perspective.
Naturally, the first one (the legal one) focuses on incorporation, with mentions such as "separate existence for tax purposes".
The second one, however, from the Merriam-Webster was more generic:
*1 a : being <http://www.merriam-webster.com/dictionary/being>, existence <http://www.merriam-webster.com/dictionary/existence>; especially : independent, separate, or self-contained existence* *b : the existence of a thing as contrasted with its attributes* *2: something that has separate and distinct existence and objective or conceptual reality* *3: an organization (as a business or governmental unit) that has an identity separate from those of its members*
I have a simple question: is the IETF an "entity" acccording to that definition, although it is not incorporated? I believe the answer is yes.
GS: It is not an entity for the purpose of entering into contracts. ISOC (which is a legal entity) enters into contracts. (IETF is an "organized activity" of ISOC.)
As you know, the W3C, at least for a long period of time, was not incorporated, relying on three separate MoUs with "host" structures. (It may have changed since then but that was the case for several years). Isn't the W3C an "entity" for the purpose of the discussion we're having?
GS: No. W3C is not an entity for the purpose of discussions regarding entering into contracts. W3C is a contractual entity, created by a Joint Agreement between the host institutions. W3C members enter into a Member Agreement signed by all 4 host institutions.
Likewise, aren't the gNSO and the ccNSO, "organizations" (it is in their name) that have "an identity separate from those of (their) members", and "something that has a separate and distinct existence and objective or conceptual reality", and a "self-contained existence"? And therefore "entities" in light of the MW definition above?
GS: They may be entities for some purposes, but not for the purpose of entering into contracts. To the extent they are entities, that is irrelevant to the discussion at hand.
You may have had a legal meaning in mind for the term "entity" because of your own background but it seems clear that in Frankfurt, several people clearly understood the word in its more general meaning.
GS: I believe this has since been clarified.
*2) KEY QUESTIONS*
In my view, the core of the discussion here can be summarized as follows:
1) *Is incorporation required to "contract"?* Given that the IETF seems to have an MoU with ICANN (among other arrangements with other "entities"), I would suppose that the answer is no. Can someone clarify this important point?
GS: As pointed out before, ISOC is the signatory of the ICANN MoU. So the answer to your question is *YES, YES, A THOUSAND TIMES YES.*
2) If the answer above is indeed no, is there any practical, legal or other constraint that would *expressly forbid IETF, the NRO (or ASO), the ccNSO and the gNSO to have each an MoU* with ICANN or any other contractor for the IANA functions?
GS: The answer above is yes, so no need to go further. (I will also state again for the record that an MoU is a contract, and has to follow all the rules applicable to contracts in general.)
3) If the answer to 2) above is no, what are *the pros and cons to establishing instead a specific contracting Corporation*, in terms of simplicity, compatibility between the mechanisms for the different groups (parameters, numbers, names), guarantee of accountability, stability and security of the system.
GS: The answer to 2) is either "yes" or "not applicable," so no need to go further.
Unless these questions are clearly answered, I am afraid we will be running in circles and losing time.
GS: I am afraid that a number of people seem to insist on running in circles. I have been spending quite some time trying to whack them back on track. I do not think that the group as a whole is running in this circle, or losing time, just a few people who desperately want to find something that doesn't exist. If it did, don't you think I would be the first person to bring it up? I hope that these questions are now clearly and definitively answered. Greg
Thanks for the feedback.
Best
Bertrand
"*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de Saint Exupéry ("*There is no greater mission for humans than uniting humans*")BERTRAND DE LA CHAPELLEInternet & Jurisdiction Project | Director
On Sun, Nov 30, 2014 at 7:42 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Holly and all:
If we are turning to the dictionary, please consider the following:
Entity
*A real being; existence. An organization or being that possesses separate existence for tax purposes. Examples would be corporations, partnerships, estates, and trusts. The accounting entity for which accounting statements are prepared may not be the same as the entity defined by law.*
Entity *includes corporation and foreign corporation; not-for-profit corporation; profit and not for-profit unincorporated association;* Business Trust <http://legal-dictionary.thefreedictionary.com/Business+Trust>, *estate, partnership, trust, and two or more persons having a joint or common economic interest; and state, U.S., and foreign governments.*
*An existence apart, such as a corporation in relation to its stockholders.*
*Entity includes person, estate, trust, governmental unit.* West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
This is what I mean when I say "entity." I'll try to say "legal entity" to avoid any doubt in future. But there was no doubt in my mind (or many others) that when we were talking about creating an entity -- and in particular, an entity that could enter into a contract -- that this is what we were talking about.
For what it's worth, the Merriam-Webster's definition that I found first when searching the Internet is as follows:
1* a* *:* being <http://www.merriam-webster.com/dictionary/being>, existence <http://www.merriam-webster.com/dictionary/existence>; *especially* *:* independent, separate, or self-contained existence *b* *:* the existence of a thing as contrasted with its attributes 2*:* something that has separate and distinct existence and objective or conceptual reality 3*:* an organization (as a business or governmental unit) that has an identity separate from those of its members
Greg
On Sat, Nov 29, 2014 at 11:16 PM, Holly Raiche <h.raiche@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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participants (4)
-
Bertrand de La Chapelle -
Greg Shatan -
Guru Acharya -
Milton L Mueller