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

[Greg Shatan]

On the other hand, if you have a government contract to operate a resource
or provide particular services, you can't do so after the contract
expires.  If I have a contract to clean the FBI building, and the contract
is terminated, I will be in big trouble if I show up and pull out my
cleaning supplies and try to go to work.

Even in your scenario, while you might continue to make widgets or conduct
research, you'll no longer be making widgets for the government or
conducting government research.  Either you would be doing it for other
clients, or it would be a hobby (and businesses don't tend to have hobbies).

That said, the IANA Contract is an odd bird.  It's simplistic to think of
it as a contract where the government has a resource and it contracts with
a private party to manage that resource.  If it were that simple, the
resource would stay with the government and a new manager would be found.
The IANA Contract was much more about finding oversight and a "home" for a
private resource that started in Jon Postel's shirtpocket.  I'm reminded of
the book "Are You My Mother?", where a little hatchling chick runs around
trying to get someone to be its mother.  IANA found its mother and 18 years
later (ironically), it's ready to fly on its own.

Lastly though, I agree that if in fact this "Let It Go" scenario were
actually tried, it would not be pretty.  When Congress knocks on the door,
and the NTIA says "IANA? There's no IANA here.  The contract was over and
she left," there would be hell to pay.

Greg

On Thu, Dec 17, 2015 at 11:36 AM, David Post <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 <202-559-8597>/Direct
> 202-559-8750 <202-559-8750>/Fax 202-255-6172 <202-255-6172>/cell   Twitter:
> @VlawDC *
>
> *"Luck is the residue of design" -- Branch Rickey *
> *From:* Steve DelBianco [ mailto:sdelbianco at netchoice.org
> <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
> <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
>
> Sent on the run, apologies for brevity
>
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> *******************************
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> Foundation
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