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

David Post david.g.post at gmail.com
Fri Dec 18 02:45:17 UTC 2015


That's correct:  "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."

But that's because without the contract, you're a 
trespasser when you go into the FBI building.

If you have a contract to clean Rock Creek Park, 
and the contract is terminated, there's no 
problem if you show up afterwards and clean the 
park - you're allowed to be there, even without 
the contract, and there's no law against cleaning 
up parks on your own.  If you have a government 
contract to conduct research on cancer formation 
in mice, you can continue to do the research 
after the contract is terminated, because there's 
no law against doing research on cancer formation in mice.

The IANA Contract is indeed, as you put it, an 
"odd bird."  IMHO, it is more like the parks 
cleaning contract than the FBI building cleaning 
contract - ICANN )(or anyone else) would not be 
breaking any law (or "trespassing") if it 
continued to do everything it does today, even 
after the termination of the contract.

Phil Corwin wrote:
>PC:  If the IANA contract expired tonight ICANN 
>could keep doing everything it is doing today – 
>exceept recommend changes to the root zone.  ...


Even that, I would argue, is something ICANN 
could do perfectly lawfully even after contract 
termination - the same way Virtualaw LLC, or the 
University of Minnesota, or David Post can 
perfectly lawfully "recommend changes to the root 
zone."  After contract termination, the root zone 
operator is not obligated to do anything ICANN 
recommends - but that doesn't speak to whether 
ICANN can legally continue to do what it is currently doing.

If, after termination, ICANN recommended a change 
to the Root zone and the RIR's implemented that 
change in the root zone files under their 
control, would there have been any violation of any law?  I would say "No."


David

At 02:43 PM 12/17/2015, Greg Shatan wrote:
>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.
>
>GregÂ
>
>On Thu, Dec 17, 2015 at 11:36 AM, David Post 
><<mailto:david.g.post at gmail.com>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 contntract expire†scenario before I 
>>don’t buy it for three reasons. Â
>>First, ICANN has been “hired†under the 
>>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.Â
>David
>
>
>>Â
>>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.
>>Â
>>Third, and most important, the whole concept of 
>>the “trtransition†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.
>>Â
>>But we have lots of other lawyers and policy 
>>wonks on this list, so opinions may vary.
>>Â
>>Best regards, Philip
>>Â
>>Â
>>Philip S. Corwin, Founding Principal
>>Virtualaw LLC
>>1155 F Street, NW
>>Suite 1050
>>Washington, DC 20004
>><tel:202-559-8597>202-559-8597/Direct
>><tel:202-559-8750>202-559-8750/Fax
>><tel:202-255-6172>202-255-6172/cell
>>Â
>>Twitter: @VlawDC
>>Â
>>"Luck is the residue of design" -- Branch Rickey
>>Â
>>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
>>Â
>>Phil — I don’t tthink the Congressional appr 
>>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.
>><
>>Â
>>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.
>>Â
>>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
>>Â
>>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.
>>Â
>>Â
>>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
>>Â
>>As I read this, it does not slow anything 
>>down.  We were targeting a transition around September 30, 2015 in any event.
>>Â
>>Greg
>>Â
>>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,
>>Â
>>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.
>>Â
>>Are you suggesting that instead it means one of 
>>the earlier steps can't start when it was intended?
>>Â
>>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.
>>Â
>>Maybe we could ask NTIA for their view of the situation too?
>>Â
>>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
>> > NTIA̢۪s originally announced 4 principles 
>> for IC 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.
>> >
>> >
>>_______________________________________________
>>Accountability-Cross-Community mailing list
>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org 
>>
>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>Â
>>--
>>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
>>_______________________________________________
>>Accountability-Cross-Community mailing list
>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org 
>>
>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>Â
>>No virus found in this message.
>>Checked by AVG - <http://www.avg.com>www.avg.com
>>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15
>>Internal Virus Database is out of date.
>>No virus found in this message.
>>Checked by AVG - <http://www.avg.com>www.avg.com
>>Version: 2016.0.7227 / Virus Database: 4477/11098 - Release Date: 12/01/15
>>Internal Virus Database is out of date.
>>_______________________________________________
>>Accountability-Cross-Community mailing list
>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org 
>>
>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>*******************************
>David G Post - Senior Fellow, Open Technology 
>Institute/New America Foundation
>blog (Volokh Conspiracy) 
><http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post 
>
>book (Jefferson's 
>Moose)Â 
><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2n 
>Â Â Â Â Â
>music 
><http://tinyurl.com/davidpostmusic%A0>http://tinyurl.com/davidpostmusic 
>publications etc.  http://www.davidpost.com       Â
>*******************************

*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n
music http://tinyurl.com/davidpostmusic 
publications etc.  http://www.davidpost.com
*******************************  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151217/000309a9/attachment-0001.html>


More information about the Accountability-Cross-Community mailing list