[CWG-Stewardship] Fwd: Stress Tests for IANA transition proposals

Fri Nov 28 06:44:40 UTC 2014

All,

Further to our recent discussions of stress tests, scenarios and the like,
I am forwarding to the group an email from Steve DelBianco of the Business
Constituency with a number of examples of stress tests and links to further
discussion.

This is particularly relevant to RFP4 (which requests a "Description  of
 how  you  have  tested  or  evaluated  the  workability  of any  new
 technical  or operational  methods proposed  in this  document and  how
 they  compare  to  established arrangements") and RFP3 (to inform our
discussion of various alternatives and their strengths and weaknesses).

Greg

---------- Forwarded message ----------
From: Steve DelBianco <sdelbianco at netchoice.org>
Date: Tue, Nov 25, 2014 at 3:24 PM
Subject: Stress Tests for IANA transition proposals
To: "gregshatanipc at gmail.com" <gregshatanipc at gmail.com>
Cc: Steve Metalitz <met at msk.com>, Tony Holmes <tonyarholmes at btinternet.com>,
Phil Corwin <psc at vlaw-dc.com>, Aparna Sridhar <aparnasridhar at google.com>, "
skawaguchi at fb.com" <skawaguchi at fb.com>, Jonathan Zuck <JZuck at actonline.org>,
Kristina Rosette <krosette at cov.com>, Rick Lane <RLane at 21cf.com>, Elisa
Cooper <Elisa.Cooper at markmonitor.com>

  Greg — as you requested on our call today, here are ’stress tests’ from
the BC's  June comments (link
<http://www.bizconst.org/wp-content/uploads/2014/07/BC-reply-comment-on-Enhancing-ICANN-Accountability-FINAL.pdf>
to
comments).   The stress tests in a standalone doc are also available at
http://bizconst.org/StressTests

 Some of these stress tests relate to general ICANN accountability
concerns.  But several are relevant to the IANA role you are looking at for
Naming Functions  (Numbers 3, 5, 7, 8, 9, and 10, in red below):

   The BC recommends use of scenarios, or ‘stress tests’ to help design and
evaluate ICANN accountability structures and mechanisms. Today, ICANN is an
effective organization that generally performs its core functions. Although
it can be uncomfortable to imagine a scenario where a future ICANN fails
dramatically or is confronted with a serious threat, we should consider
challenging scenarios that could arise, such as those described below:

   1.

   Scenario: ICANN unilaterally cancels the Affirmation of Commitments,
   which it may do with just 120 days notice. And if not outright
   cancellation, ICANN could refuse to implement recommendations of an
Affirmation
   review. Presently, the discipline imposed by needing to win the IANA
   contract forces ICANN to adhere to the only external accountability it has
   today: the Affirmation of Commitments. If the Affirmation is to remain
   part of the new ICANN accountability framework, it is essential that the
   leverage formerly conveyed by the IANA contract be replaced with a new
   mechanism, which may or may not include parties external to ICANN.
   2.

   Scenario: ICANN takes steps to eliminate its legal presence in a nation
   where Internet users and domain registrants are planning to seek legal
   remedies for ICANN’s failure to enforce contracts. This scenario is not
   about ICANN opening new offices around the world as part of its global
   outreach. Rather, it is about ICANN creating a new legal entity distinct
   from its present status as a California non-profit corporation, and
   eventually relocating its legal presence. ICANN’s current corporate
   presence in California creates legal certainty for businesses; presence in
   a new jurisdiction might not.
   3.

   Scenario: ICANN becomes financially insolvent, due to lawsuits or gross
   mismanagement. However unlikely, this scenario should explore the orderly
   continuation of IANA functions and ICANN contract enforcement in the event
   ICANN could not maintain the necessary qualified technical resources.
   4.

   Scenario: ICANN expands scope beyond its limited technical mission by
   using domain registration fees to fund grants for developing nations or
   other worthy causes. ICANN has the power to determine fees charged to TLD
   applicants, registry operators, registrars, and registrants, so it presents
   a big target for any Internet-related cause seeking funding sources. This
   scenario should examine how a fully independent ICANN could be held to its
   limited technical mission, and whether its fees and spending are subject to
   external accountability.
   5.

   Scenario: ICANN attempts to add a new top-level domain in spite of
   security and stability concerns expressed by technical community leaders.
   This scenario actually came close to occurring when ICANN management did
   not respond to recommendations of its own Security and Stability Advisory
   Committee (SSAC) regarding risks of new TLDs interacting with security
   certificates and internal domains already in use. SSAC recommendations from
   prior years were not acted upon until late 2013, after significant pressure
   from a root server operator, Internet service providers, and system
   integrators. In the actual event, ICANN responded with a collision
   mitigation plan. This scenario should assess how proposed new
   accountability mechanisms could respond to similar technical risks
   expressed before a TLD delegation, as well as reactive responses to
   problems reported after a delegation.
   6.

   Scenario: Governments in ICANN’s Government Advisory Committee (GAC)
   amend their operating procedures to change from consensus decisions to
   majority voting. Today GAC adopts formal advice according to its Operating
   Principle 47: “consensus is understood to mean the practice of adopting
   decisions by general agreement in the absence of any formal objection.”13
   But the GAC may at any time change its procedures to use majority
   voting, where each government has equal voting power, such as in the UN and
   ITU. (Notably, only 61 governments were present at the GAC meeting
in Singapore
   during March 2014, where several GAC members expressed dissatisfaction with
   the multistakeholder process and consensus threshold for new gTLD program
   advice.) While ICANN’s board is not strictly obligated to follow GAC
   advice, this scenario should assess how ICANN could respond to GAC advice
   with strong majority support but less than consensus. This scenario might
   also indicate need to amend ICANN bylaws regarding deference to GAC advice
   that is not supported by consensus.

   1.

   Scenario: As described in scenario 6, the GAC might issue
   majority-supported advice instructing ICANN to suspend a TLD that refuses
   to remove domains with content critical of governments (e.g., .corrupt
   ). Today, this kind of censorship routinely occurs at the edge of the
   Internet when governments block domestic access to websites, such as Turkey
   blocking Twitter. This scenario envisions censorship moving from the edge to
   the core of the internet – the root table of TLDs used by the entire
   world. The stress test would ask how a proposed accountability mechanism
   could respond if a future ICANN board bowed to GAC advice for censorship at
   the root of the DNS.
   2.

   Scenario: ICANN attempts to re-delegate a gTLD because the registry
   operator is determined to be in breach of its contract. The registry
   operator challenges the breach determination and obtains an injunction from
   a national court. What procedures or appeal mechanisms would be used by the
   entity charged with maintenance and publication of the root zone?
   3.

   Scenario: A court grants an injunction against delegation of a new gTLD
   that’s a plural version of another TLD that has already been delegated.
   (for example, .hotels following after .hotel, or .coms following after
   .com) The court may have ruled on infringement of rights or on arbitrary
   and capricious behavior by ICANN, but that’s beside the point. The point of
   this scenario is to ask how a post-transition ICANN and IANA would be
   empowered to respond to a court injunction granted by a jurisdiction where
   ICANN has a legal presence. Would ICANN/IANA be able to defer a delegation
   until court proceedings were concluded? How would ICANN/IANA be accountable
   for its decision if it ignored the court injunction?
   4.

   Scenario: A government telecom minister instructs ICANN to re-delegate a
   country-code top-level domain (ccTLD), despite objections from many current
   registrants and user communities in the country concerned. Faced with this
   re-delegation request, what response options and measures could be
   available to ICANN and the entity charged with maintenance of the root
   zone?

-- 

*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*

*666 Third Avenue **ï** New York, NY 10017-5621*

*Direct*  212-885-9253 *| **Main* 212-949-9022

*Fax*  212-949-9190 *|* *Cell *917-816-6428

*gsshatan at lawabel.com <gsshatan at lawabel.com>*

*ICANN-related: gregshatanipc at gmail.com <gregshatanipc at gmail.com> *

*www.lawabel.com <http://www.lawabel.com/>*
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