[client com] The Reverse Hybrid Model

Client Committee List for CWG cwg-client at icann.org
Tue Apr 14 05:41:41 UTC 2015


All,

Paul Kane among others has suggested a variation on the current "internal"
models.  Rather than quashing it, I thought it was proper to give it
appropriate consideration.  As Paul is traveling, I thought I would put
this together so that it could be given such consideration.

For the sake of convenience, I'm calling it the "Reverse Hybrid Model."

In this model, ICANN would still be the source of the right to perform the
IANA Functions, as in the current internal model.  However, ICANN  would
enter into an irrevocable agreement with the Affiliate for the IANA
Functions.  Rather than having the right to perform the IANA Functions
itself, the Affiliate would be given the right to contract for an entity to
act as IANA Functions Operator.  (Thus, the Affiliate would be set up as a
supervisor, not as an operator.)  Initially (but not perpetually), that
subcontracted entity would be ICANN, the current IANA Functions Operator.
However, the Affiliate would have the option, under the circumstances
designated by the CWG, to separate the performance of the IANA Functions
from ICANN (e.g., by issuing an RFP and enter into an agreement with a
third party).

As with the current internal models, ICANN Corporate would be the only
member of the Affiliate. The multi-stakeholder community would (s)elect the
independent Board of the Affiliate, which would have a limited (and
defined) scope.

It may appear that ICANN is granting a right to itself, through the
Affiliate.  However, the key is that the Affiliate would have the oversight
and stewardship responsibility over the IANA Functions, by exercising the
rights and powers it has under the agreement with the IANA Functions
Operator.  In other words, the Affiliate would be the contractor with
oversight of ICANN-as-IANA Functions Operator, and would also have the
right to exercise escalation rights, up to and including issuing an RFP and
potentially a contract to a third party if the designated triggers
warranted it.  The CSC and the PRT would be activities of the Affiliate,
created by bylaws of the Affiliate, with a multistakeholder board providing
oversight over the CSC and the PRT and ultimately over the IANA Functions
Operator (initially, ICANN-as-IANA).

Under the irrevocable agreement, ICANN would retain "ownership" of the IANA
Function Operator rights but the Affiliate would (irrevocably) hold the
right to subcontract for the performance of those services.  Although ICANN
would be the only member, we would need to insure that its rights as the
member to override the Board were as limited as possible.

While this does not structurally separate the IANA Function operations from
the rest of ICANN, it does separate the stewardship and the decision-making
rights regarding the performance of the operations from ICANN.  As with the
second option under the current hybrid proposal, there would be functional
separation of the IANA Function operations from the rest of ICANN.

While structural separation of the IANA Functions operations does make a
certain kind of future total separation easier (spinning off the current
IANA Functions Operator within ICANN), this is really the less likely form
of total separation.  The more likely form of total separation would be the
selection of a new IANA Functions Operator, and that right would be
structurally separated from ICANN.

More importantly from an operational perspective, the oversight and
stewardship over the operations of the IANA Functions would be structurally
separated from ICANN.  It would be firmly in the CSC, the PRT and the
multistakeholder board.  This would be the primary job of the Affiliate,
putting service accountability front and center.  Yet, it does not slight
separability.

I believe this proposal has sufficient merit to warrant due consideration.
  One of the reasons we have engaged Sidley is so that we can understand
the viability and desirability of various models and mechanisms (and so I
and other don't have to "play lawyer").  In that spirit, I am forwarding
this model to both the CCWG and the Client Committee so that this "Reverse
Hybrid" model can be appropriately considered.

Speak to you all in a few hours, as dawn rises over New York City.

Greg





Kind regards to both

Best

Paul
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