[CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act

David Post david.g.post at gmail.com
Thu Dec 17 16:36:53 UTC 2015


At 08:36 PM 12/16/2015, Phil Corwin wrote:
>[SNIP]
>Respectfully, while I have heard the “just let 
>the contract expire” scenario before I don’t buy it for three reasons.
>
>First, ICANN has been “hired” under the 
>contract and when it expires it no longer has 
>any right to manage IANA, no more than any other 
>contractor has a right to keep performing the 
>work it was doing after its contract terminates.

Though it may not matter too much, I'm not sure 
that's strictly true ... Generally speaking, a 
government contractor DOES have the right to keep 
performing work it was doing under contract after 
the contract expires.  If I am the recipient of a 
government contract to make widgets, or to 
conduct research, when the contract expires 
ordinarily I can go on making widgetsor 
conducting the research.  I think the same thing 
is true here.  Depending on exactly what you mean 
by "managing IANA," there is a great deal that 
ICANN now does under its contract with USG that 
it could simply continue to do when the contract expires.

David


>
>Second, Secretary Strickling is already on the 
>public record saying this in January 2015 about 
>the FY 2015 prohibition, which is identical to the one in the FY 16 bill:
>We take that seriously. Accordingly, we will not 
>use appropriated funds to terminate the IANA 
>functions contract with ICANN prior to the 
>contract's current expiration date of September 
>30, 2015. Nor will we use appropriated dollars 
>to amend the cooperative agreement with Verisign 
>to eliminate NTIA's role in approving changes to 
>the authoritative root zone file prior to 
>September 30. On these points, there is no ambiguity.
>That language puts on NTIA on record as viewing 
>the transition as something that requires it to 
>actively perform two separate actions.
>
>Third, and most important, the whole concept of 
>the “transition” includes NTIA transferring 
>its role to the global multistakeholder 
>community which has acquired adequate 
>accountability powers, and that implies an 
>active handoff and not a passive contract expiration.
>
>But we have lots of other lawyers and policy 
>wonks on this list, so opinions may vary.
>
>Best regards, 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: Steve DelBianco [mailto:sdelbianco at netchoice.org]
>Sent: Wednesday, December 16, 2015 8:18 PM
>To: Phil Corwin; Greg Shatan; Jordan Carter
>Cc: Accountability Cross Community
>Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations 
>Act Extends IANA Transition Freeze without DOTCOM Act
>
>Phil — I don’t tthink the Congressional 
>appropriations language would prevent the 
>transition “event".    NTIA could simply allow 
>the IANA contract to expire 30-Sep-2016 without 
>spending any resources whatsoever.  The contract 
>could just expire, leaving in question who has 
>the authority to operate the IANA 
>functions.  But no question who would be 
>operating the root, numbers and protocols the next day — ICANN would.
><
>
>So we (the community) should continue developing 
>accountability mechanisms so we can hold ICANN 
>accountable if/when it takes control of IANA 
>functions.   It could happen on 30-Sep-2016 so let’s be ready.
>
>From: 
><<mailto:accountability-cross-community-bounces at icann.org>accountability-cross-community-bounces at icann.org> 
>on behalf of Phil Corwin <<mailto:psc at vlaw-dc.com>psc at vlaw-dc.com>
>Date: Wednesday, December 16, 2015 at 7:56 PM
>To: Greg Shatan 
><<mailto:gregshatanipc at gmail.com>gregshatanipc at gmail.com>, 
>Jordan Carter <<mailto:jordan at internetnz.net.nz>jordan at internetnz.net.nz>
>Cc: Accountability Cross Community 
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations 
>Act Extends IANA Transition Freeze without DOTCOM Act
>
>NTIA can continue to prepare for the transition, 
>including leading an interagency review of any 
>Proposal it receives from ICANN. But it is 
>prohibited from actually effecting the transition until October 1, 2016.
>
>
>From: 
><mailto:accountability-cross-community-bounces at icann.org>accountability-cross-community-bounces at icann.org 
>[mailto:accountability-cross-community-bounces at icann.org] 
>On Behalf Of Greg Shatan
>Sent: Wednesday, December 16, 2015 5:07 PM
>To: Jordan Carter
>Cc: Accountability Cross Community
>Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations 
>Act Extends IANA Transition Freeze without DOTCOM Act
>
>As I read this, it does not slow anything 
>down.  We were targeting a transition around September 30, 2015 in any event.
>
>Greg
>
>On Wed, Dec 16, 2015 at 4:48 PM, Jordan Carter 
><<mailto:jordan at internetnz.net.nz>jordan at internetnz.net.nz> wrote:
>Hi all, hi Milton,
>
>My understanding of the steps in the timetable 
>was that finalising our proposal in January was 
>what gave space for a transition in September at the earliest.
>
>Are you suggesting that instead it means one of 
>the earlier steps can't start when it was intended?
>
>I.e. If NTIA could not start its consideration 
>until 30 Sep then that does materially change 
>things, timing wise. But if it could still do 
>its review as part of preparing for a transition, then that wouldn't.
>
>Maybe we could ask NTIA for their view of the situation too?
>
>Cheers
>Jordan
>
>On Thursday, 17 December 2015, Mueller, Milton L 
><<mailto:milton at gatech.edu>milton at gatech.edu> wrote:
>This is good news, and I hope the co-chairs of 
>the CCWG all sit down and read former 
>Congressman Boucher's message out loud - better 
>yet, sing it to the tune of Jingle Bells! - 
>together. The idea that we have to truncate our 
>process and twist ourselves into pretzels or 
>cave to unreasonable demands from the board in 
>order to meet an arbitrary schedule is now, I think, officially dead.
>--MM
>
> > -----Original Message-----
> > It's also noteworthy that (b) has been added 
> saying that the restriction shall
> > not apply in fiscal year 2017. That's a nice statement of intention by the
> > drafters of this provision that by the commencement of fiscal year 2017 in
> > October of next year the transition will be complete.
> >
> > I don't believe that the adoption of this 
> language in any way reflects a stepping
> > back by Congress from the bipartisan consensus which has now been formed
> > in both the House and the Senate to support 
> the IANA transition as long as the
> > NTIA’s originally announced 4 principles 
> for ICANN accountability are in place
> > and are enforceable as part of the transition plan.
> >
> > Please let me know if you have questions.
> >
> > Rick
> >
> > SEC. 539. (a) None of the funds made available by
> > 21 this Act may be used to relinquish the responsibility of
> > 22 the National Telecommunications and Information Ad ministration, during
> > fiscal year 2016, with respect to
> > 24 Internet domain name system functions, including respon-
> > 1 sibility with respect to the authoritative root zone file and
> > 2 the Internet Assigned Numbers Authority functions.
> > 3 (b) Nothwithstanding any other law, subsection (a)
> > 4 of this section shall not apply in fiscal year 2017.
> >
> >
>_______________________________________________
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>
>--
>Jordan Carter
>Chief Executive, InternetNZ
>
><tel:%2B64-21-442-649>+64-21-442-649 | 
><mailto:jordan at internetnz.net.nz>jordan at internetnz.net.nz
>
>Sent on the run, apologies for brevity
>
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