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oops ... I meant rootserver operators, not RiRs ... "DNS on the
Brain" <br>
David<br>
*******************************************************************************<br>
<br>
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."<br><br>
But that's because without the contract, you're a trespasser when you go
into the FBI building. <br><br>
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.
<br><br>
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. <br><br>
Phil Corwin wrote:<br>
<blockquote type=cite class=cite cite="">PC: If the IANA contract
expired tonight ICANN could keep doing everything it is doing today –
exceept recommend changes to the root zone.
...</blockquote><br><br>
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. <br><br>
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."<br><br>
<br>
David<br><br>
At 02:43 PM 12/17/2015, Greg Shatan wrote:<br>
<blockquote type=cite class=cite cite="">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.<br><br>
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).<br><br>
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.<br><br>
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.<br><br>
Greg <br><br>
On Thu, Dec 17, 2015 at 11:36 AM, David Post
<<a href="mailto:david.g.post@gmail.com">david.g.post@gmail.com</a>
> wrote:
<dl>
<dd>At 08:36 PM 12/16/2015, Phil Corwin
wrote:<blockquote type=cite class=cite cite="">
<dd>[SNIP]
<dd>Respectfully, while I have heard the “just let the contntract
expire†scenario before I don’t buy it for three reasons. Â
<dd>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. </blockquote>
<dd>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
<dd>David<br>
<br><br>
<blockquote type=cite class=cite cite="">
<dd>Â
<dd>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:
<dd>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.
<dd>That language puts on NTIA on record as viewing the transition as
something that requires it to actively perform two separate actions.
<dd>Â
<dd>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.
<dd>Â
<dd>But we have lots of other lawyers and policy wonks on this list, so
opinions may vary.
<dd>Â
<dd>Best regards, Philip
<dd>Â
<dd>Â
<dd>Philip S. Corwin, Founding Principal
<dd>Virtualaw LLC
<dd>1155 F Street, NW
<dd>Suite 1050
<dd>Washington, DC 20004
<dd><a href="tel:202-559-8597">202-559-8597</a>/Direct
<dd><a href="tel:202-559-8750">202-559-8750</a>/Fax
<dd><a href="tel:202-255-6172">202-255-6172</a>/cell
<dd>Â
<dd>Twitter: @VlawDC
<dd>Â
<dd>"Luck is the residue of design" -- Branch Rickey
<dd>Â
<dd>From: Steve DelBianco [
<a href="mailto:sdelbianco@netchoice.org" eudora="autourl">
mailto:sdelbianco@netchoice.org</a>]
<dd>Sent: Wednesday, December 16, 2015 8:18 PM
<dd>To: Phil Corwin; Greg Shatan; Jordan Carter
<dd>Cc: Accountability Cross Community
<dd>Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA
Transition Freeze without DOTCOM Act
<dd>Â
<dd>Phil — I don’t tthink the Congressional appr appropriations
language would prevent the transition “event". Â
 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.
<dd><
<dd>Â
<dd>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.
<dd>Â
<dd>From:
<<a href="mailto:accountability-cross-community-bounces@icann.org">
accountability-cross-community-bounces@icann.org</a>> on behalf of
Phil Corwin <<a href="mailto:psc@vlaw-dc.com">psc@vlaw-dc.com</a>>
<dd>Date: Wednesday, December 16, 2015 at 7:56 PM
<dd>To: Greg Shatan
<<a href="mailto:gregshatanipc@gmail.com">gregshatanipc@gmail.com</a>
>, Jordan Carter
<<a href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a>
>
<dd>Cc: Accountability Cross Community
<<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a>>
<dd>Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA
Transition Freeze without DOTCOM Act
<dd>Â
<dd>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.
<dd>Â
<dd>Â
<dd>From:
<a href="mailto:accountability-cross-community-bounces@icann.org">
accountability-cross-community-bounces@icann.org</a> [
<a href="mailto:accountability-cross-community-bounces@icann.org" eudora="autourl">
mailto:accountability-cross-community-bounces@icann.org</a>] On Behalf Of
Greg Shatan
<dd>Sent: Wednesday, December 16, 2015 5:07 PM
<dd>To: Jordan Carter
<dd>Cc: Accountability Cross Community
<dd>Subject: Re: [CCWG-ACCT] FW: FY16 Appropriations Act Extends IANA
Transition Freeze without DOTCOM Act
<dd>Â
<dd>As I read this, it does not slow anything down. We were
targeting a transition around September 30, 2015 in any event.
<dd>Â
<dd>Greg
<dd>Â
<dd>On Wed, Dec 16, 2015 at 4:48 PM, Jordan Carter
<<a href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a>
> wrote:
<dd>Hi all, hi Milton,
<dd>Â
<dd>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.
<dd>Â
<dd>Are you suggesting that instead it means one of the earlier steps
can't start when it was intended?
<dd>Â
<dd>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.
<dd>Â
<dd>Maybe we could ask NTIA for their view of the situation too?
<dd>Â
<dd>Cheers
<dd>Jordan
<dd>On Thursday, 17 December 2015, Mueller, Milton L
<<a href="mailto:milton@gatech.edu">milton@gatech.edu</a>> wrote:
<dd>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.
<dd>--MM
<dd>> -----Original Message-----
<dd>> It's also noteworthy that (b) has been added saying that the
restriction shall
<dd>> not apply in fiscal year 2017. That's a nice statement of
intention by the
<dd>> drafters of this provision that by the commencement of fiscal
year 2017 in
<dd>> October of next year the transition will be complete.
<dd>>
<dd>> I don't believe that the adoption of this language in any way
reflects a stepping
<dd>> back by Congress from the bipartisan consensus which has now
been formed
<dd>> in both the House and the Senate to support the IANA transition
as long as the
<dd>> NTIA̢۪s originally announced 4 principles for IC ICANN
accountability are in place<br>
<dd>> and are enforceable as part of the transition plan.
<dd>>
<dd>> Please let me know if you have questions.
<dd>>
<dd>> Rick
<dd>>
<dd>> SEC. 539. (a) None of the funds made available by
<dd>> 21 this Act may be used to relinquish the responsibility of
<dd>> 22 the National Telecommunications and Information Ad
ministration, during
<dd>> fiscal year 2016, with respect to
<dd>> 24 Internet domain name system functions, including respon-
<dd>> 1 sibility with respect to the authoritative root zone file and
<dd>> 2 the Internet Assigned Numbers Authority functions.
<dd>> 3 (b) Nothwithstanding any other law, subsection (a)
<dd>> 4 of this section shall not apply in fiscal year 2017.
<dd>>
<dd>>
<dd>_______________________________________________
<dd>Accountability-Cross-Community mailing list
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
<dd>Â
<dd>--
<dd>Jordan Carter
<dd>Chief Executive, InternetNZ
<dd><a href="tel:%2B64-21-442-649">+64-21-442-649</a> |
<a href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a>
<dd>Sent on the run, apologies for brevity
<dd>_______________________________________________
<dd>Accountability-Cross-Community mailing list
<dd><a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a>
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</blockquote>
<dd>*******************************
<dd>David G Post - Senior Fellow, Open Technology Institute/New America
Foundation
<dd>blog (Volokh Conspiracy)
<a href="http://www.washingtonpost.com/people/david-post">
http://www.washingtonpost.com/people/david-post</a>
<dd>book (Jefferson's Moose)Â
<a href="http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0">
http://tinyurl.com/c327w2n      </a>
<dd>music
<a href="http://tinyurl.com/davidpostmusic%A0">
http://tinyurl.com/davidpostmusic </a>publications etc.Â
<a href="??.htm">http://www.davidpost.com        </a>
<dd>******************************* </blockquote>
</dl><br>
*******************************<br>
David G Post - Senior Fellow, Open Technology Institute/New America
Foundation<br>
blog (Volokh Conspiracy)
<a href="http://www.washingtonpost.com/people/david-post" eudora="autourl">
http://www.washingtonpost.com/people/david-post<br>
</a>book (Jefferson's Moose)
<a href="http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0" eudora="autourl">
http://tinyurl.com/c327w2n </a> <br>
music
<a href="http://tinyurl.com/davidpostmusic" eudora="autourl">
http://tinyurl.com/davidpostmusic</a> publications etc.
<a href="http://www.davidpost.com /" eudora="autourl">
http://www.davidpost.com </a> <br>
******************************* <br>
*******************************<br>
David G Post - Senior Fellow, Open Technology Institute/New America
Foundation<br>
blog (Volokh Conspiracy)
<a href="http://www.washingtonpost.com/people/david-post" eudora="autourl">
http://www.washingtonpost.com/people/david-post<br>
</a>book (Jefferson's Moose)
<a href="http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0" eudora="autourl">
http://tinyurl.com/c327w2n </a> <br>
music
<a href="http://tinyurl.com/davidpostmusic%A0" eudora="autourl">
http://tinyurl.com/davidpostmusic </a> publications etc.
<a href="http://www.davidpost.com /" eudora="autourl">
http://www.davidpost.com
</a> <br>
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