[CWG-RFP3] Policy authority

[Gomes, Chuck]

Malcolm,

As I understand it, what our task is, as the title of the CWG indicates, is to replace NTIA's role of stewardship over the IANA, not stewardship over the DNS.  I recognize as I think most of us do that their specific role of stewardship over the IANA functions resulted in an indirect stewardship over more than just the IANA functions because the possibility that they could award the IANA functions contract to an entity different than ICANN was a motivating factor with regard to other services provided by ICANN.

I have been involved in ICANN policy development in the GNSO since its beginning and I do not recall NTIA or more broadly the U.S. Government having a role any different than other governments as part of the GAC. I suppose there was the implicit threat that they would not delegate a string if they didn't like it, but that has never happened to my knowledge.

Here is what C.2.9.d says: 

"C.2.9.2d Delegation and Redelegation of a Generic Top Level Domain (gTLD) -- The
Contractor shall verify that all requests related to the delegation and redelegation of gTLDs are
consistent with the procedures developed by ICANN. In making a delegation or redelegation
recommendation, the Contractor must provide documentation verifying that ICANN followed its
own policy framework including specific documentation demonstrating how the process
provided the opportunity for input from relevant stakeholders and was supportive of the global
public interest. The Contractor shall submit its recommendations to the COR via a Delegation
and Redelegation Report."

Where it that clause is ICANN appointed as the policy authority.  I agree that it is assumed that they are, which is a fact especially for gTLDs, and in fact that is reality today.

Chuck

-----Original Message-----
From: cwg-rfp3-bounces at icann.org [mailto:cwg-rfp3-bounces at icann.org] On Behalf Of Malcolm Hutty
Sent: Tuesday, November 18, 2014 6:36 PM
To: Alan Greenberg; Guru Acharya; Seun Ojedeji
Cc: RFP3
Subject: Re: [CWG-RFP3] Policy authority

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.
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