[CWG-RFP3] Policy authority

[Milton L Mueller]

The answer to this Chuck seems obvious to me. We are not tasked with _changing_ ICANN’s status as policy authority, but any intelligent IANA transition plan should require IANA to continue to accept ICANN as its policy authority, should it not?

I have not had time to read this entire thread, but that is how I interpreted Malcolm’s comment.
I believe that ensuring that a new IANA follows ICANN policy is a critical part of the transition, especially if we achieve separability.

From: cwg-rfp3-bounces at icann.org [mailto:cwg-rfp3-bounces at icann.org] On Behalf Of Gomes, Chuck
Sent: Tuesday, November 18, 2014 3:31 PM
To: Guru Acharya; Malcolm Hutty
Cc: RFP3
Subject: Re: [CWG-RFP3] Policy authority

Guru/Malcolm,

Please show me where in the CWG charter we are tasked with doing anything with regard to the Policy Authority.

Chuck

From: cwg-rfp3-bounces at icann.org<mailto:cwg-rfp3-bounces at icann.org> [mailto:cwg-rfp3-bounces at icann.org] On Behalf Of Guru Acharya
Sent: Tuesday, November 18, 2014 3:52 AM
To: Malcolm Hutty
Cc: RFP3
Subject: Re: [CWG-RFP3] Policy authority

Excellent point Malcolm.

I think this also raises an issue of recursiveness. If the members of the Oversight Body are drawn from ICANN's (the incumbent Policy Authority) organisational structures (SO/AC), and this Oversight Body chooses to change the Policy Authority in the IANA Functions Contract, then it would automatically dissolve the legitimacy of the incumbent members of the Oversight Body. This would lead to a transition phase where both the membership of the Policy Authority and the Oversight Body are to be reconstituted, possibly a risky situation.

However, I agree that the Policy Authority should not be immutable or perpetually granted to ICANN.

Regards,
Guru

On Tue, Nov 18, 2014 at 1:08 PM, Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>> wrote:
Dear all,

I hope I have not come too late to this party to participate. I have
carefully read the mail archive before posting.

Before I dive in with my suggestions, I have a question regarding
Strawman 2 and Strawman 3. Both these strawmen envisage that the IANA
Functions Contract would continue, with two different types of new
entity as the counter-party to replace NTIA, "PROC" and "PROSI". Both
these strawmen entertain the the possibility that someone other than
ICANN could be awarded the IANA Functions Contract.

My question is this: in the event that the new counter-party (PROC or
PROSI) placed the IANA Functions Countract with a new operator, would it
be open to the counter-party to direct the IANA operator to a new source
of policy authority for gTLDs?

The existing policy authority of ICANN derives from paragraph C.2.9.2.d
of the IANA Function Contract, which states:

* 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.

This paragraph appears to be of core importance. As I understand matter,
it is this paragraph which gives ICANN policy authority over gTLDs as a
practical matter: subjective claims about community support may explain
why the NTIA chose to grant ICANN this authority, but that community
will was only given effect through this paragraph.

So my first question is, do the current strawmen (2 & 3) intend that
this provision be a fixed and wholly immutable provision of any future
IANA Functions Contract, or could ICANN be replaced by the counter-party
(either at-will or in defined circumstances)?

I would like to point out that this is not explicitly clear from the
strawmen as drafted, and that is a weakness that should be addressed.
My sense is that you intend it to be immutable, and I do consider that
problematic, but before diving into why I would like to confirm your
intentions (and discover whether there is an existing consensus on this
point).


Malcolm.

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