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

[Jordan Carter]

Surely what is different is that this is a transition. A transition of
stewardship.

If the United States can 'change its mind' after the fact, that isn't a
transition, it's a fiction.

Jordan

On Friday, 18 December 2015, Phil Corwin <psc at vlaw-dc.com> wrote:

> 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*
>
> *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:* Jordan Carter [mailto:jordan at internetnz.net.nz
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','david.g.post at gmail.com');>> wrote:
>
> At 08:36 PM 12/16/2015, Phil Corwin wrote:
>
> [SNIP]
> Respectfully, while I have heard the “just let the contract expireâ€
> 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 “transitionâ€
> 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: *< accountability-cross-community-bounces at icann.org> on behalf of
> Phil Corwin <psc at vlaw-dc.com>
> *Date: *Wednesday, December 16, 2015 at 7:56 PM
> *To: *Greg Shatan <gregshatanipc at gmail.com >, Jordan Carter <
> jordan at internetnz.net.nz >
> *Cc: *Accountability Cross Community <
> 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 [
> 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 <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>
> 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
>
> +64-21-442-649 | jordan at internetnz.net.nz
>
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> --
> Jordan Carter
> Chief Executive, InternetNZ
>
> +64-21-442-649 | jordan at internetnz.net.nz
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-- 
Jordan Carter
Chief Executive, InternetNZ

+64-21-442-649 | jordan at internetnz.net.nz

Sent on the run, apologies for brevity
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