[Area 4] A reading of the Business Constituency's ten "Stress Tests"

Sat Jan 10 19:54:58 UTC 2015

Eric,

I reviewed your earlier note (below) where you discard most of the BC’s proposed stress tests<http://bizconst.org/stresstests>.  ( Sorry that I missed your note first time around.)

In the attached draft I did my best to remove clutter, provide more clarity, and fit to your preferred format.

I realize that you consider some of our stress tests to be improbable distractions. But here in Washington, it’s clear the administration and Congress will use scenarios/stress tests like these to evaluate transition and accountability proposals.  So it behooves us to use these scenarios to help us design and evaluate the mechanisms we are proposing.

So I would ask that you include these stripped-down scenarios for the next draft, and let’s seek consensus on improving our product as we move ahead.

Thank you,
Steve

From: Eric Brunner-Williams <ebw at abenaki.wabanaki.net<mailto:ebw at abenaki.wabanaki.net>>
Date: Saturday, January 10, 2015 at 12:02 AM
To: Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>>, Mathieu Weill <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>, Thomas Rickert <rickert at anwaelte.de<mailto:rickert at anwaelte.de>>, "\"leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx> >> León Felipe Sánchez Ambía\"" <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
Subject: Fwd: [Area 4] A reading of the Business Constituency's ten "Stress Tests"

Steve,

Below is my original comment on the BC's "Stress Tests", following up on your providing the URL in the Adobe Connect chat during the 9 Dec. conference call.

The BC's insolvency scenario #3 has been addressed in the 0105 draft in two forms -- one in which both the reserve and recurring revenues are compromised, and one in which only recurring revenues are compromised.

Contested redelegation (of either g or cc) is worth looking at, the BC scenarios #8 & 10, are unfortunately cluttered by a hypothetical change of jurisdiction which obscures the two real, serious problems. The same clutter obscures the possible utility of BC scenario #9.

I suggest some back and forth until we have an improved work product.

Eric

-------- Forwarded Message --------
Subject:        [Area 4] A reading of the Business Constituency's ten "Stress Tests"
Date:   Mon, 15 Dec 2014 19:05:25 -0800
From:   Eric Brunner-Williams <ebw at abenaki.wabanaki.net><mailto:ebw at abenaki.wabanaki.net>
To:     ccwg-accountability4 at icann.org<mailto:ccwg-accountability4 at icann.org>

Dear Colleagues,

During the December 9th CCWG-Accountability conference call Steve
DelBianco (BC) mentioned a document prepared by the Business
Constituency entitled "Stress Tests". The URL for this document is at
[1] below. In this note I'll discuss the BC's ten suggested scenarios,
and I urge you all to read through the original document.

--
BC  #1. Cancellation of the AoC.

I am not a lawyer, but my wife is, and restating the hypothetical as
"what constrains the conduct of the successor contractor in the absence
of the existing contractual conditions" seems to avoid the question of
accountability altogether.

I suggest this item be deferred until clarified.

--
BC  #2. Flight to avoid jurisdiction.

I am not a lawyer, but my wife is, and restating the hypothetical as "in
what jurisdictions would Verisign, GoDaddy, ... be unable to determine
likely contested issue outcomes" yields a very unlikely set of possible
answers.

I suggest this item should be discarded as a distraction.

--
BC  #3. Insolvency.

The is a business continuity question, for which a number of equivalent,
and more likely, scenarios exist.

I think this item can be improved by asking what Continuity issues are
reflected in the Corporation's plan of record, and whether distinct
accountability issues exist.

--
BC  #4. Applicant Support Revisited.

The ICANN BoC indicated at the Nairobi meeting that "diversity"
necessitated activity -- realized in that period by the (Cross
Community) Applicant Support Working Group (ASG), which inter alia,
included the possibility that the support provided to some applicants
could come directly from ICANN, in the form of reduced regulatory
burdens, reduced application fees, reduced recurring costs, etc.
Recommendations by the ASWG to this effect were opposed during the
public comments periods by the BC, hence my summary that this revisits
the BC's position of record on the ASWG sets of recommendations.

I suggest that this item can be improved by asking what happens if ICANN
attempts to regulate some activity which is outside of the usual three
buckets of names, protocol parameters, and addresses, and without
implicitly privileging early adopters. Then a meaningful accountability
question can be posed and a credible scenario constructed.

--
BC  #5. Ignoring SSAC

The accountability issue here isn't obvious to me. The bylaws create
several Advisory Councils, and when they function they can provide the
Board with advice opposed to some decision the AC anticipates the Board
may make. No accountability necessarily arises when the Board
(frequently) does not follow the advice offered by an AC. The BC
comments refer to "new accountability mechanisms" in the context of gTLD
delegation.

I suggest that this item can be improved by asking what accountability
issues exist with respect to new gTLD (re)delegeation. See also BC #7
and BC #8, infra.

--
BC  #6. GAC votes

The accountability issue here isn't obvious to me. The bylaws create
several Advisory Councils, each of which may have distinct internal
processes resulting in the issuance of advice. A change in any AC's
internal process does not necessarily create an accountability issue.

I suggest this item should be discarded.

--
BC  #7. .xxx redux

This appears to revisit the .xxx issue, within the hypothetical
framework of BC #6 -- a GAC vote rather than a lack of GAC consensus and
overt (and covert) expressions of displeasure by Governments.

As this is an instance of #6, I suggest this item should be discarded as
with BC #6.

--
BC  #8. Contested gTLD Regelegation

This revisits BC #2, supra, the hypothetical case assumes some novel
jurisdiction in which Verisign and others which maintain and publish the
IANA root zone. As this is an instance of #2, I suggest this item should
be discarded as with BC #2.

--
BC  #9. Enjoined Delegation

This revisits BC #2, supra, the hypothetical case assumes some novel
jurisdiction in which "ICANN and the IANA" are "empowered" to litigate a
registry contract.

As this is an instance of #2, I suggest this item should be discarded as
with BC #2.

--
BC #10. Contested ccTLF Redelegation

The policy for ccTLD redelegation has been, with the exception of .iq,
where the incumbent delegee was in the custody of the United States,
agreement by all parties. Until this policy is formally changed this
does not appear to exercise an accountability issue beyond the existing
practice of accounting for ccTLD change requests.

I suggest this item should be discarded.

----

After several readings of the BC's document I'm unable to discern
significant likely scenarios for which accountability issues exist. It
is quite possible that I'm reading this with insufficient information,
or unfairly due to long familiarity with the BC's positions of record on
diversity and access, or unfairly due to a personal impression that
several of the "scenarios" are quite unlikely, or ambiguous to the point
of non-meaning, or both.

To its credit, the BC has attempted to find scenarios of general
utility, and offers these suggestions, so that "we [c]ould consider ...
scenarios that could arise."

Any colleague who arrives at a different reading I hope will articulate
his or her reading on any or all of BC #1 through BC #10, as mine is
only one view of a document offered for collegial review.

Eric Brunner-Williams
Eugene, Oregon

[1] http://www.bizconst.org/StressTests/
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