[CWG-Stewardship] FW: Do we really need a Contracting Co.?
Matthew Shears
mshears at cdt.org
Fri Dec 5 11:13:19 UTC 2014
Hi
The recurring RFP approach would not cause any more turmoil than we
could have under the present contract construct. For example, a 5 year
recurring RFP would be a longer contract period than the current
NTIA-ICANN contract (which is 3 years, /with two two-year options to
extend//that are entirely at the discretion of the USG /which one can
argue do not provide the kind of contractual predictability we would
want). Extensions, and whether they might be awarded or not, merely
contribute to longer term uncertainty. W/r/t/ continuity and stability
the operator, according to section C.7.3 of the current contract, is
required to provide a "a plan in place for transitioning each of the
IANA functions to ensure an orderly transition while maintaining
continuity and security of operations" in the event that "the Government
selects a successor contractor." Of course these safeguards should be
kept to ensure continuity from one operator to another post RFP. A
recurring 5 year RFP offers more certainty from a contracting
perspective than what we have at the moment and, it could be argued,
should provide equal stability and continuity _and_, importantly,
greater accountability.
Matthew
On 12/5/2014 10:13 AM, Maarten Simon wrote:
>
> Hi Milton,
>
> It is not that I see the Contracting co as a non option but I try to
> get a better understanding of what it will actually brings us.
>
> A clear one is that it probably makes a future separation mainly from
> a legal perspective a bit easier. But as stated by others, I think
> separation will in whatever form always only be a nuclear option. (I
> do not like the idea of a recurring 3 or whatever number of years RFP
> cycle as it will likely cause a lot of political turmoil each time
> which I think will not be supportive to the stability of the function
> that the solution is supposed to warrant).
>
> I am further still not sure if I am with you on the power struggle. As
> I see it now the MRT will be in both options a sort of the ICANN
> community minus the board and staff. In that case I do not see much of
> a difference, and certainly do not expect to see that in practice,
> between the MRT telling the Contracting co to tell the ICANN board
> what the ICANN board has to do or the MRT telling the ICANN board
> directly what to do. In the first instance the ICANN board has to
> follow orders because of a contract. In the second the ICANN board has
> to follow orders because of its bylaws.
>
> The improvement of the plan would be that we do not need to discuss
> all kind of legal (capture, liability) and political (jurisdiction)
> technicalities around an entity we do not need. (as far as the bylaws
> option is technically legally possible under Californian law).
>
> Best,
>
> Maarten
>
> *From:*cwg-stewardship-bounces at icann.org
> [mailto:cwg-stewardship-bounces at icann.org] *On Behalf Of *Milton L Mueller
> *Sent:* donderdag 4 december 2014 18:54
> *To:* cwg-stewardship at icann.org
> *Subject:* [CWG-Stewardship] FW: Do we really need a Contracting Co.?
>
> Hi, Maarten
>
> In your scenario, the MRT has to tell the board to do something that
> it probably won't want to do.
>
> In the CWG scenario, the MRT tells the Contracting Co, which has no
> interest, what to do.
>
> Clearly, your approach produces an internal power struggle.
>
> If you say the MRT can unambiguously order the board to spin off IANA
> according to the bylaws, you run into California law problems; but
> even if you didn't, you are simply making the MRT an authority no
> different from the Contract Co. How is that an improvement over the
> CWG plan?
>
> --MM
>
> *From:*Maarten Simon [mailto:maarten.simon at sidn.nl]
> *Sent:* Thursday, December 4, 2014 11:08 AM
> *To:* Milton L Mueller
> *Cc:* 'cwg-stewardship at icann.org'
> *Subject:* RE: [CWG-Stewardship] Do we really need a Contracting Co.?
>
> Milton,
>
> Viable or legal possible are two different things and yes I find the
> separability principle less central than the stability one and am
> therefore willing to accept something like the 'kludgy patch' as an
> escape from ICANN as a worst case scenario and as the last resort
> safeguard if all others fail.
>
> I further wonder if there will be a different 'ongoing power struggle
> between the MRT and the board' in the contract co situation or in the
> internal ICANN situation. That all depends on the whole set of the
> arrangements and in the end on the acceptance of the authority of the
> MRT by the board.
>
> Best,
>
> Maarten
>
> *From:*Milton L Mueller [mailto:mueller at syr.edu]
> *Sent:* donderdag 4 december 2014 15:52
> *To:* Maarten Simon; 'Eduardo Diaz'; 'Holly Raiche'
> *Cc:* 'cwg-stewardship at icann.org'
> *Subject:* RE: [CWG-Stewardship] Do we really need a Contracting Co.?
>
> Maarten
>
> I think this proposal is not viable. In effect, it makes the ICANN
> board the contracting authority for the IANA functions, thus
> eliminating the separability principle. You try to patch this problem
> in a kludgy way by saying that the MRT can "order the ICANN board" to
> give up the IANA function, which in effect makes the MRT a continuing
> legal entity, and paves the way for an ongoing power struggle should
> the MRT and board come into conflict over the future control of IANA.
>
> This is yet another example of people tying themselves in knots and
> putting at risk the separability principle in order to avoid the
> simple expedient of creating a Contract Co. But why do you fear the
> Contract Co so much? No clear rationale for avoiding this has ever
> been put forward.
>
> If you want to be able to move the IANA functions contract it is much
> cleaner and simpler to have an independent, separate contract co.
>
> --MM
>
> *From:*cwg-stewardship-bounces at icann.org
> <mailto:cwg-stewardship-bounces at icann.org>
> [mailto:cwg-stewardship-bounces at icann.org] *On Behalf Of *Maarten Simon
> *Sent:* Thursday, December 4, 2014 8:56 AM
> *To:* 'Eduardo Diaz'; Holly Raiche
> *Cc:* cwg-stewardship at icann.org <mailto:cwg-stewardship at icann.org>
> *Subject:* Re: [CWG-Stewardship] Do we really need a Contracting Co.?
>
> Hi all,
>
> I am of the same opinion and wonder, not noing much about Californian
> corporate law, if we could find a solution in adding specific elements
> to ICANN's bylaws specifically aimed on the IANA function.
>
> If we could arrange via the bylaws that the ICANN board explicitly has
> to follow orders from a MRT-like structure, we might not need a
> contract but have an (internal) MoU/SLA or whatever. If the ICANN
> board would at a certain moment in time still decide not to follow
> orders of the MRT, I would assume it may be sued by affected parties
> for violating its own bylaws. We further may dictate in the bylaws
> that ICANN has to give up the IANA function if decided by this MRT and
> of course seal it by dictating that these specific articles may only
> be changed with the explicit consent of the MRT.
>
> As I said, I have no clue if such a solution would be possible under
> Californian law. Under my legal system I think it would.
>
> Best,
>
> Maarten
>
> *From:*cwg-stewardship-bounces at icann.org
> <mailto:cwg-stewardship-bounces at icann.org>
> [mailto:cwg-stewardship-bounces at icann.org] *On Behalf Of *Eduardo Diaz
> *Sent:* woensdag 3 december 2014 1:19
> *To:* Holly Raiche
> *Cc:* cwg-stewardship at icann.org <mailto:cwg-stewardship at icann.org>
> *Subject:* Re: [CWG-Stewardship] Do we really need a Contracting Co.?
>
> Holly and all:
>
> I have the same questions and concerns. Are we taking the route of a
> Contrac Co, because is what NTIA is expecting to see as part of the
> proposal or is it because concerns of ICANN accountability. My
> impression is the second.
>
> -ed
>
> On Tue, Dec 2, 2014 at 7:12 PM, Holly Raiche
> <h.raiche at internode.on.net <mailto:h.raiche at internode.on.net>> wrote:
>
> Seun
>
> You have summed up the issue wonderfully.
>
> Yes, we appear to be going down the second route. But there are still
> questions around that route. Alan's (and Olivier's and many other's)
> inputs have asked hard questions about the route - as have I. In
> particular, I asked about the proposed Contract Co. If it is to be
> created, what is to be its nature, size, powers, funding. From Greg,
> it emerged that what was envisaged was a shelf company and the multi
> stakeholder processes under its umbrella would be the mechanisms of
> accountability. Since then, it appears that the Contract Co will be
> more than a shelf company, so the many questions about its nature,
> powers, funding remain. And without answers, I am not sure why the
> first alternative - fixing the accountability mechanisms - has been
> rejected. It appears we are hoping the creation of a legal entity
> (however small) will solve problems. I remain to be convinced.
>
> Holly
>
> On 3 Dec 2014, at 7:21 am, Seun Ojedeji <seun.ojedeji at gmail.com
> <mailto:seun.ojedeji at gmail.com>> wrote:
>
> Hi Chuck,
>
> Thanks a lot for sharing this url....its really useful and i am going
> to hope that the accountability team are looking at scenarios like
> that to fix ICANN. Inview of this, there are generally 2 routes:
>
> - Fix the accountability mechanisms within ICANN and let the NTIA role
> naturally go away
>
> - While the accountability mechanism is yet to be fixed, provide a
> means by which IANA can still be moved out of ICANN
>
> I presume we are currently going the second route at the moment. So a
> question that i may ask is, will it not be better to work towards the
> first route through the second route? This will mean maintaining the
> ability to move IANA from current operator with an external body (can
> be an existing body like ISOC, IETF etc) or the lightweight
> (Contracting Co earlier proposed) and then provide certain
> principles/mechanisms that this CWG expect to have been addressed
> within specific time-frame.
>
> That will give ICANN (and its community) enough time to work on
> improving its accountability measures within the timeline indicated by
> this CWG.
>
> Regards
>
> On Tue, Dec 2, 2014 at 2:05 PM, Gomes, Chuck <cgomes at verisign.com
> <mailto:cgomes at verisign.com>> wrote:
>
> Seun,
>
> Please see the letter I sent to Fadi in 2013:
> https://www.icann.org/resources/correspondence/gomes-to-chehade-2013-08-30-en
> .
>
> Chuck
>
> *From:*cwg-stewardship-bounces at icann.org
> <mailto:cwg-stewardship-bounces at icann.org>
> [mailto:cwg-stewardship-bounces at icann.org
> <mailto:cwg-stewardship-bounces at icann.org>] *On Behalf Of *Seun Ojedeji
> *Sent:* Tuesday, December 02, 2014 3:57 AM
> *To:* Avri Doria
> *Cc:* cwg-stewardship at icann.org <mailto:cwg-stewardship at icann.org>
> *Subject:* Re: [CWG-Stewardship] Do we really need a Contracting Co.?
>
> On Tue, Dec 2, 2014 at 7:33 AM, Avri Doria <avri at acm.org
> <mailto:avri at acm.org>> wrote:
>
> On 02-Dec-14 07:16, Seun Ojedeji wrote:
>
> I also don't understand the view that ICANN community and corporate
> are separate.
>
>
> The ICANN Board and Staff are independent of the Community and can
> overrule the community either by a vote of the Board, or by calling an
> action 'implementation' that does not require community agreement.
>
> Okay, may i ask if this is happening at the moment and what the NTIA
> role has been in making sure it does not happen? because what we are
> trying to transition is the NTIA role and not ICANN management
> itself....if there is something that needs to be fixed in the ICANN
> structure then it could be put in the requirement for transition (most
> of which should be looked into by the accountability cwg).
>
> especially since the Board, given its understanding of the its
> fiduciary responsibility sees itself as NOT representing the
> community. Adn the staff is governed by a CEO that is not subject,
> in any way, to community appproval in hiring or contract renewal.
> The Community has NO influence over ICANN Staff.
>
> Well in the RIR world the board (by by-law) acts in the interest of
> the organisation. They may also choose not to listen to the community
> but they usually wisely choose otherwise.... ;).
>
> What does that mean? and how is ICANN community different from a
> typical RIR community.
>
> In the RIRs there is no body with a vote that can overrule the
> will of the community in policy making.
>
> The RIR board by the by-law could decide not to approve a policy
> proposal, its just that they have not had any reason to exercise such
> powers. So if you are saying there has been consistence instances
> where a policy that achieved consensus in the ICANN community was
> overruled by the board, then there is definitely something wrong and
> will be good to have an example of such scenario to understand why
> they took such action and determine how to avoid such in future. This
> is how we build the organisation from inside especially if we
> understand that ICANN is the home for gTLD
>
> Please when you think of who pays, think of it from the customer
> perspective, think of participation, think of the resources that's
> already been expended in this current ICG process.
>
>
> How does the contractor paying hurt the consumers?
>
> I think it will be safer to answer this with another question, where
> will the contractor get the money to pay from?
>
>
> I persist in seeing the only real possibility of capture in a
> massively multistakeholder body is that the community process can
> be captured by ICANN corporate decisions made that disregard the
> community's consensus, and that is what we need to protect against.
>
> Looks like you are now referring the MRT to be a MASSIVE
> multi-stakeholder body, please can we fashion out the composition and
> charter of this organisation so we appreciate what we are looking at.
> It sure seem there is going to be a lot of mechanism required to
> ensure that the multistakeholder body is indeed inclusive.
>
> Regards
>
>
> avri
>
>
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>
>
>
> --
>
> ------------------------------------------------------------------------
>
> /Seun Ojedeji,
> Federal University Oye-Ekiti
> web: //http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/>
> //Mobile: +2348035233535 <tel:%2B2348035233535>//
> //alt email:<http://goog_1872880453/>seun.ojedeji at fuoye.edu.ng
> <mailto:seun.ojedeji at fuoye.edu.ng>/
>
> The key to understanding is humility - my view !
>
>
>
>
> --
>
> ------------------------------------------------------------------------
>
> /Seun Ojedeji,
> Federal University Oye-Ekiti
> web: //http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/>
> //Mobile: +2348035233535//
> //alt email:<http://goog_1872880453/>seun.ojedeji at fuoye.edu.ng
> <mailto:seun.ojedeji at fuoye.edu.ng>/
>
> The key to understanding is humility - my view !
>
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--
Matthew Shears
Director - Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
mshears at cdt.org
+ 44 771 247 2987
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