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

Thu Dec 17 19:32:50 UTC 2015

Several years ago, when the contract was being re-awarded, NTIA rejected ICANN’s initial application and solicited other applications. In the end it was re-awarded to ICANN. But if it had been transferred to another operator, ICANN’s contract  would have expired and it would clearly have had no authority to continue performing the functions. How is an expiration without re-award any different?

In any event, NTIA’s public commitment is to go beyond a mere expiration and to engage in an active transfer to the global multistakeholder community.

Philip S. Corwin, Founding Principal
Virtualaw LLC
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Suite 1050
Washington, DC 20004
202-559-8597/Direct
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Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: Jordan Carter [mailto:jordan at internetnz.net.nz]
Sent: Thursday, December 17, 2015 2:24 PM
To: David Post
Cc: Phil Corwin; Steve DelBianco; Greg Shatan; Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA Transition Freeze without DOTCOM Act

But ICANN isn't a widget maker. It regulates the top level of the Internet's DNS, albeit not as a regulator of the conventional type.

Jordan

On Friday, 18 December 2015, David Post <david.g.post at gmail.com<mailto:david.g.post at gmail.com>> wrote:
At 08:36 PM 12/16/2015, Phil Corwin wrote:

[SNIP]
Respectfully, while I have heard the â€œjust let the contract expireâ€ scenario before I donâ€™t buy it for three reasons.

First, ICANN has been â€œhiredâ€ 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 â€œtransitionâ€ 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<javascript:_e(%7B%7D,'cvml','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 donâ€™t tthink the Congressional appropriations language would prevent the transition â€œevent".    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 letâ€™s be ready.

From: < accountability-cross-community-bounces at icann.org<javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces at icann.org');>> on behalf of Phil Corwin <psc at vlaw-dc.com<javascript:_e(%7B%7D,'cvml','psc at vlaw-dc.com');>>
Date: Wednesday, December 16, 2015 at 7:56 PM
To: Greg Shatan <gregshatanipc at gmail.com<javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');> >, Jordan Carter <jordan at internetnz.net.nz<javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');> >
Cc: Accountability Cross Community < accountability-cross-community at icann.org<javascript:_e(%7B%7D,'cvml','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: accountability-cross-community-bounces at icann.org<javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces at icann.org');> [ mailto:accountability-cross-community-bounces at icann.org<javascript:_e(%7B%7D,'cvml','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 <jordan at internetnz.net.nz<javascript:_e(%7B%7D,'cvml','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 <milton at gatech.edu<javascript:_e(%7B%7D,'cvml','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
> NTIAâ€™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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