[CWG-RFP3] Strawman Proposal 4

Mon Nov 17 09:29:37 UTC 2014

Hi,

It is true, I care more about the requirements I put forward for a
solution then the exact legal form of the agreement document.  And I do
think the 3 proposals on the table all go off in a problematic
direction.  I have seen a bit of consternation about my having come up
with this 4th proposal too late.  I admit I did it in reaction to seeing
3 proposals that I feel just won't do.  I think having to work on
solutions at the same time that people are working on principles and
requirements does make it much harder to avoid solutionism.

So though I believe the Trust or Trust-like structure is workable and is
sufficiency light weight, it does need to be confirmed as workable by
someone with expereince in building international Trust arrangements.  I
am certainly deeming Options 2&3 as non workable based on experience
with ICANN and other no profit institutions.  And if there is another
legal mechansim that meets the same requirements that would work am
happy to consider it.  But every solution I have seen to date, has
problems, i.a.,

- a single stakeholder solution
- lacks the possibility for full separation if warranted by the
community at some later date
- creates a new organization that will recapitulate many of the problems
of ICANN.
- doesn't protect IANA as the actual root (for protocols, and their
derivative numbers and names) and key critical resource of the Internet
as we know it.

In terms of the distinction Bertrand made between periodic review and
exception based review, I think that the main mechanism should be
periodic review, but there should also be a way for dealing with the
crisis situation. In terms of the length, I would think that the NTIA
periodicity might be worth emulating, a seven year period with one or
more intermediate checkpoints. As for presumtion of renewal, I learned a
lot about that when chairing the GNSO group on Registry contracts a
decade ago.  I generally do not favor the presumption of renewal but
understand the business and investment reasons for wanting it.  Since
ICANN is not a business, nor would I consider it appropriate for a
future contract holder to be profit making entity, I consider the
business imperative of the presumption of renewal to be weaker in this case.

BTW, while still not a lawyer, I have done a bit of research on Trusts -
can't argue for something and trust completely to others to do the
research.  One thing I checked on was the ability of a Trust to hold a
contract or MOU and to make contracts or MOUs.  That seems to be done
all the time by trustees on behalf of the beneficiaries and thus is not
the blocking issue for Trusts.  It would help if those who say it is
unworkeable would list the legal points that make it so, taking into
account the versatility of Trusts, especially under common law, and
given the fact that they are different in every jurisdiction.   If there
is a weak point in the Trust solution it is whether IANA with its
databases  can be considered an asset without an assignment of financial
value.  And while a nominal financial value can be assigned to anything,
I am not sure that this is necessary or reasonable, though it may be
workable.  This is one of the many areas in which my legal research is
still wanting,  but I am a researcher and will keep researching.

Again, I regret that my prior agreement to coordinate and teach at the
African School in Internet Governance and my pre-paid non-changeable,
non refundable flights made it impossible for me be in Frankfurt.

thanks

avri

On 17-Nov-14 01:22, Greg Shatan wrote:
> With my coordinator hat on, my aim is to keep the discussion evolving.  At
> this point, I'm just trying to help draw out information and flesh out the
> concepts.
>
> I'm not saying that a trust won't work.  I am looking for something (such
> as an example) that would indicate that it would work and how.  While we
> don't have much time to come to our decisions, there is still time to try
> and understand the alternatives.
>
> Although I am a lawyer, and I do have general working knowledge of trust
> law, I am by no means a trusts lawyer.  While I certainly will try and look
> more deeply into the trust concept as it may apply here, I would not expect
> to offer any kind of "final analysis."
>
> On the other hand, I do hope to get some idea of whether it is genuinely
> workable,  I am wary of a broad legal concept being invoked as a "cure-all"
> without any sense that it is realistic.
>
> However, I don't think we should get bogged down in questions about the
> trust mechanism and lose sight of the other  attributes of Strawman 4,
> which I think Avri brought out in her response to my prior email in this
> thread.  These should be on the table regardless of whether the particular
> method they are paired with is viable.
>
> Greg
>
> On Sun, Nov 16, 2014 at 12:16 PM, Avri Doria <avri at acm.org> wrote:
>
>>  Hi,
>>
>> Excuse me, but i am going to need a bit more than your opinion or even
>> that of Greg even, that this can't happen.  As the child of two lawyers, I
>> learned early that the fact that one or another lawyer (especially when
>> they come from the opposing side) says something is impossible is ofte an
>> indication that they just don't want to see the idea pursued and that there
>> is a third lawyer somewhere who knows exactly how to do what needs to be
>> done.  And that the quicker they tell you something is impossible, the more
>> likely it is to be possible after all is said and done.
>>
>> So, please forgive me for not taking you legal advice.
>>
>> avri
>>
>>
>> On 16-Nov-14 10:46, Guru Acharya wrote:
>>
>> Thanks for the detailed explanation Avri. While I understand the sentiments
>> that you have shared, I feel that the concept of trusts can not be used
>> here. I will leave it to Greg, as the coordinator and a lawyer, to give the
>> final analysis.
>>
>> Maybe you could use Strawman 1 as a baseline (since it is closest to what
>> you propose in terms of no new entity) and modify it to arrive at the
>> solution of your choice. I see that you have already suggested changes to
>> Stephanie's document on Strawman 1. Working with that could give direction.
>>  Hi,
>>
>> I am not a lawyer, so any repsonse I give is suspect.
>>
>> In any case, Trusts are you say very varied over jurisdictions.  The have
>> existed forever, from what I read (not only wikipedia) since Roman times or
>> before.  In fact I think I remember reading about them in some obscure
>> Latin lesson half way through the last century.
>>
>> In essence the way I understand them is that some who has an asset of
>> value, for example stewardship of the IANA contract, gives that item in
>> trust to an intermediary, the adminstrator, to hold and administer for the
>> trustee - the Internet community.
>>
>> It is true I do not know the exact form of a Trust or Trust-like
>> arrangement that would work.  For that one would need someone who was an
>> expert in international trusts to determine what, if any, mix of available
>> trust elements could be brougth together to achieve the goal.  I guess I
>> have so much faith in lawyers that I believe that they can create an
>> appropriate piece of paper to create any sort of needed legal arrangement;
>> in this case a trust to hold the IANA contract for  the Global Internet
>> Community.
>>
>> What I am looking for is:
>>
>> - a minimalist solution that changes what is necessary to account for NTIA
>> transfer of stewardship,  but does not try to solve every possible
>> complaint the contracted parties might have about IANA performance.
>>
>> - a solution that allows full separability of IANA from ICANN, but which
>> does require that separation, especially not at this time.
>>
>> - a solution that does not build yet another entity for handling IANA that
>> is subject to the same growth dynamics as ICANN, which was created for
>> handling IANA.
>>
>> - a soltion that does not lead us in the slicing IANA into many little
>> ianas. (It is ironic that the IANA stewardship transition process may
>> result in the yet another form of Internet fragmentation)
>>
>>
>> In may ways I think we have confused the work in our exegisis of the
>> contract.  The primary  thing that is changing in terms of Stewardship is
>> who gets to decide that the contract should be either renewed or awarded
>> elsewhere.  That is what we should focus on.
>>
>> That is why I am suggesting a Trust, or some other Trust-like legal
>> relationship, where the IANA contract is put in trust for the global
>> Internet Community and there is a mechanism by which the multistakeholder
>> community can be brought together when necessary for critical decisions,
>> like reviewing performance before making a contract recommendation.
>>
>> avri
>>
>> On 14-Nov-14 05:35, Guru Acharya wrote:
>>
>> Hi Avri and Greg,
>>
>> This is with reference to the Strawman 4 added to the matrix:https://docs.google.com/document/d/1kO8dtSdkTnH79FSUsxA8KmPv1O2IfYwYFm2k_CIoNMw/edit
>>
>> While I am familiar with how trusts operate in my country, I am not able to
>> comprehend the use of trusts as done in Strawman 4. Maybe someone can help
>> explain the nature of laws under which this proposal is being contemplated.
>>
>> As I understand, trusts are generally established between three legal
>> entities: the author, trustee and the beneficiary.
>>
>> The person who reposes or declares the confidence is called the “author of
>> the trust”; The person who accepts the confidence is called the “trustee”;
>> the person for whose benefit the confidence is accepted is called the
>> “beneficiary”.
>>
>> In Strawman 4, who are these entities?
>>
>> There is reference to a ICG like panel without any legal status - I suppose
>> a committee within ICANN - is that the beneficiary? Who are you proposing
>> the trustee be? Are you suggesting that that the trustee contract the IANA
>> operator (ICANN) on behalf of the beneficiary (also ICANN)?
>>
>> I'm not able to see how all of this works - Maybe someone could help
>> explain.
>>
>>
>>
>>
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