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

Thu Dec 17 20:04:21 UTC 2015

I understand that.  But suppose the contract terminated tonight;
what things ICANN did today would it be prohibited from doing tomorrow?
Entering into contracts with registries and registrars?  Holding meetings?
Convening working groups? Who could stop them?
Without the USG contract, they would lose much, or all, of their
'authority' to act - but that's not the same as saying they would have
no "right
to keep performing the work it was doing after its contract terminates. "
David

On Thursday, December 17, 2015, Jordan Carter <jordan at internetnz.net.nz>
wrote:

> 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 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]
>> *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> 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
>> > 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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>>
>> --
>> 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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>>
>> *******************************
>> David G Post - Senior Fellow, Open Technology Institute/New America
>> Foundation
>> blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
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>> *******************************
>>
>
>
> --
> Jordan Carter
> Chief Executive, InternetNZ
>
> +64-21-442-649 | jordan at internetnz.net.nz
> <javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');>
>
> Sent on the run, apologies for brevity
>
>

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