[CWG-RFP3] Policy authority

[Malcolm Hutty]

On 18/11/2014 17:11, Alan Greenberg wrote:
> The project at hand is the transition of IANA away from the NTIA. 

Alan - and I hope this will serve as a reply to Seun as well,

I have to disagree with the assertion above. IANA is not changing (not
unless we change it, anyway); NTIA is.

I believe "the project at hand" is the transition of the NTIA away from
its special historic role in stewardship of the DNS. Accordingly, I
believe that our main tasks should be to identify what the NTIA used to
do, what the implications of it no longer doing that would be, and what
needs to be put in place to ready us for a "post-NTIA world".

When we examine this, we can clearly see that the role of the NTIA
includes operational supervision of the IANA functions, but is not
limited to this. It also includes the choice of ICANN as the IANA
functions operator. It also includes the appointment of ICANN as the
policy authority for gTLDs in paragraph C.2.9.2d.

It also includes, I would argue, requirements that NTIA places on ICANN
in the IANA functions contract the scope of which cover ICANN as a
policy body as well as ICANN as the IANA functions operator. Indeed, I
would characterise those as being pre-conditions for ICANN's appointment
as the policy authority. I would point to the criteria NTIA set out in
the transition announcement of March 14th as evidence that NTIA
*requires* that these requirements be enforced against ICANN
post-transition.

> NTIA has communicated to ICANN that the transition proposal must have broad community support and address the following four principles:
> 
> * Support and enhance the multistakeholder model;
> * Maintain the security, stability, and resiliency of the Internet DNS;
> * Meet the needs and expectation of the global customers and partners of the IANA services; and,
> * Maintain the openness of the Internet.

I know that in raising this delicate issue it is easy to mistake where I
am coming from, so let me be clear. I believe that ICANN should continue
to be the policy authority for gTLDs. I believe that the circumstances
under which ICANN could be stripped of such authority should be limited
to the extreme, and narrowly defined. In short, I am very much in the
camp that wants to see ICANN continue in its current mission, a role and
mission I have supported and defended for ten years.

But I do not believe this unconditionally.

I think our task is - or ought to be - to identify the core conditions
on which ICANN's legitimacy as the policy authority for gTLDs should
rest, and an effective mechanism for enforcing those conditions in
extremis. And I happen to think that we should look to the NTIA's four
conditions cited above as our starting point and foundation.

To suggest that ICANN's status as the gTLD policy authority should be
limited by conditionality should not, in my view, be terribly
surprising. That status is conditional right now: the NTIA's decision in
(was it 2012?) to reject ICANN's bid for the IANA Functions Contract and
re-issue the RFP clearly demonstrates that conditionality be applied in
very practical terms. That decision to re-issue the RFP led to the
Affirmation of Commitments, which clearly speaks to ICANN, not just to
IANA functions.

That said, if you believe that now is the time to make ICANN's gTLD
policy authority unconditional you are fully entitled to argue that.
I don't think, however, that it is reasonable to claim that taking the
opposite position is not just wrong, but out-of-scope.

As an aside, let me tell you how much I wish raising this didn't risk
associating me in your mind with those who have never wanted ICANN, and
who still hanker over transferring its policy authority to an
intergovernmental body. Please be assured, that is the opposite of what
I want. But I am conscious that the detrimental consequences of such a
transfer could also be achieved by suborning ICANN, and I believe that
as we lose the ultimate protection of the NTIA, the community needs to
put in place the necessary measures to avoid such unhappy consequences.

The official position of the NTIA, as expressed in the transition
announcement of March 14th, appears to share this view.

Malcolm.
-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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