[CWG-RFP3] Strawman Proposal 4

Tue Nov 18 07:06:10 UTC 2014

Dearest Avri,

I asked "As I understand, trusts are generally established between three
legal entities: the author, trustee and the beneficiary... In Strawman 4,
who are these entities?" I also requested you to clarify the nature of laws
under which you had conceptualised the trust arrangement.

In response, the only place where you directly answered my question was
when you said "trustee - the Internet community".
In addition, you also mentioned an "administrator to hold and administer"
the IANA Contract for the trustee, while not suggesting who the
administrator is. In the next email you instead suggested that the trustee
should hold the IANA contract on behalf of the beneficiaries, without
naming who the beneficiary is.

These answers have not been very helpful and I continue to be confused
about the constituent members of the trust. I feel you are throwing a broad
body of law (trust law) at us without helping us understand the exact
institutional arrangement that you conceptualise under it.

If you strongly feel that the trust concept is workable, I request you to
update the matrix with a more accurate description of the institutional
arrangement that you are proposing and help clear community doubts so that
we can work towards a consensus proposal. As a step towards that effort, I
humbly request you to answer the question in my first email about the
proposed parties to the trust. Also please describe the details of the
institutional arrangement, for example, what is the relationship between
ICANN and the trust constituents? Is the internet community represented in
the trust through some existing legal entity? What is the status of the ICG
panel in this trust? Who is the administrator? How is the IANA Operator
represented in or related to the trust?

In the absence of such clarity, I am unable to discuss Strawman 4 with my
local community and respond to the group. Such information asymmetry,
wherein you are holding your ideas to your chest, is a serious impediment
towards a successful bottoms-up process.

I do not think we can keep away from the legal aspects and just respond to
the RFP with a bunch of sentiments. If you are following the IETF working
group, you would realise that there is much dissatisfaction with the
current draft response because the members have chosen to keep away from
the legal aspects of the transition.

Imagine your reaction if I said the answer to the IANA transition lies in
contract law without telling you the purpose of the contract and the
parties to the contract. I also cannot but disagree with the following
magical power of lawyers: "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".

PS: I never said your proposal is late; I never said there is consensus
against MS principles; and I do not doubt your family's background in law.

Regards,
Guru

On Sun, Nov 16, 2014 at 10:46 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.
>
>
>
>
> _______________________________________________
> Cwg-rfp3 mailing
> listCwg-rfp3 at icann.orghttps://mm.icann.org/mailman/listinfo/cwg-rfp3
>
>
>
> _______________________________________________
> Cwg-rfp3 mailing listCwg-rfp3 at icann.orghttps://mm.icann.org/mailman/listinfo/cwg-rfp3
>
>
>
> _______________________________________________
> Cwg-rfp3 mailing list
> Cwg-rfp3 at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-rfp3
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-rfp3/attachments/20141118/84911919/attachment.html>