[CWG-Stewardship] My concerns with the draft proposal and an alternative option

[Alan Greenberg]

Yes, There are certainly other alternatives as well. I just presented 
the one that I had best thought out. I would be pleased to explore 
other as as well.  Alan

At 29/11/2014 04:40 AM, Olivier MJ Crepin-Leblond wrote:
>Thank you for sharing your concerns, Alan. These are concerns which 
>I also share.
>
>In your paragraph about "Alternative", I believe that the 
>alternative you propose is just one of several possible alternatives 
>that do not require the creation of new corporations. A system of 
>MoUs might also be considered, although I yet do not know how that 
>would work. An IANA Supporting Organisation, perhaps? Uncooked 
>suggestions from me which we should explore too.
>
>The current proposal appears to de-link and separate the IANA 
>function so much out of ICANN's realm that it would make the need 
>for an ICANN Accountability track 1 moot. The *tragedy* about the 
>current status is that the Accountability CCWG track 1 has not 
>started its work yet whilst the CWG on IANA Stewardship Transition 
>is just about to declare its work complete. We have ended up with a 
>carriage before the horses and in a side conversation I had with 
>ICANN Staff I am not even sure whether there is an understanding 
>that the ICANN Accountability track should be closely linked to this 
>proposal if we decide that ICANN will have an active part in this. 
>With the IANA functions operator remaining ICANN for the time being, 
>ICANN is an active part in this. So thinking the Accountability 
>track 1 is parallel to the IANA Stewardship transition track and 
>will only come together when the ICANN Board will join it with the 
>report received from the ICG is again unworkable.
>
>Finally, let me reiterate my concern that some have advocated 
>"separability" as being fundamental to the proposal, over and beyond 
>the concerns expressed by NTIA, ccTLD operators, the At-Large 
>Community (we polled our WG and ALAC members about this) that 
>operational stability and continuity was the most fundamental point 
>to base our proposal on. Does that mean status quo for ICANN? Not 
>necessarily - but again, let's please explore the different 
>alternatives on the table.
>
>Kindest regards,
>
>Olivier
>
>
>On 29/11/2014 06:23, Alan Greenberg wrote:
>>As I have mentioned during the F2F meeting in Frankfurt and on the 
>>most recent teleconference, I have significant problems with the 
>>proposal currently on the table. I am taking this opportunity to 
>>present my concerns in somewhat more detail, and I will also 
>>present what I believe to be a viable alternative. The ideas 
>>presented are my own, but I do know that they are largely shared by 
>>my At-Large colleagues and by some others in the community.
>>
>>I am also quite aware that my alternative options are likely to be 
>>vehemently opposed by some.
>>
>>I should also add that there are aspects of the current draft CWG 
>>proposal that I strongly support. The Independent Appeals Panel is 
>>perhaps the most important one.
>>
>>Overview
>>
>>Many of my concerns are due to the large number of "details" that 
>>are, as yet, unspecified. Perhaps some of my concerns will be 
>>negated once there are sufficient answers, but I have the nagging 
>>feeling that for many, there will be no viable answer. This message 
>>will necessarily be long - my apologies for that.
>>
>>Contract Co.
>>
>>Many of the issues surround the "entity" (as it was referred to in 
>>Frankfurt). The draft somewhat glibly says that it will only sign 
>>the contract. But it seems to be outsourcing much of its 
>>responsibility to the Multistakeholder Periodic Review Team (PRT), 
>>and that seems problematic. Perhaps the intent is not that all of 
>>these things go to the PRT, but there does not seem to be anywhere 
>>else for the functions to go. Among the tasks that it has 
>>outsourced are consultation regarding the contents of future RFPs, 
>>RFP issuance, RFP evaluation, contract negotiation and contract 
>>enforcement. What it cannot outsource is addressing legal issues 
>>such as being sued by a bidder who failed for win the contract and 
>>other such possibilities. Whether it is possible to have such an 
>>empty company do all this remains to be demonstrated. I will deal 
>>with problems with this outsourcing under the PRT.
>>
>>The jurisdiction under which the company is registered has been the 
>>subject of some discussion. Clearly there are those who feel that 
>>under no conditions can it be the US. At the same time, there are 
>>some indications (such as terms in the Kelly bill) that imply that 
>>the US Government may not be willing to accept anything other than 
>>the US. Note that I understand that the Kelly bill itself may 
>>wither and die, but to quote Milton Meuller, "We should also pay 
>>attention to it because the bill provides a very good benchmark for 
>>preparing for the kind of questions that the NTIA is likely to be 
>>asked after they get a complete proposal from the ICG and begin to 
>>implement it. The Kelly bill can be considered a list of the 
>>concerns that US-based interests are going to be using to assess 
>>the final proposal. The GAO Report is equally important in this 
>>regard. Ignore them at your peril." (E-mail to the CWG-Stewardship 
>>list on 23 Nov 2014)
>>
>>Without details of exactly how this corporation will exist, it is 
>>impossible to assure oneself that it cannot be captured or 
>>controlled by some entity or government(s). Running IANA will be a 
>>treasured target by some countries and we do not know what lengths 
>>they would go to capture the contract. NTIA had the strength of the 
>>US (and its battleships and such) behind it. Contract Co. will not.
>>
>>There has been no discussion about how this entity, or any part of 
>>the overall proposal, is funded. More on this later.
>>
>>Multistakeholder Periodic Review Team (PRT)
>>
>>The PRT is effectively the operational arm of Contract Co. It is 
>>the entity that makes decision for Contract Co., presumably 
>>including those related to the RFP, contract negotiations, contract 
>>enforcement and much more. But by its very name, it is Periodic. It 
>>does not exist at all times and there are some in the community 
>>that have said it should be re-constituted afresh every time it is 
>>needed (perhaps like the Phoenix born from the ashes of its 
>>predecessor). I fail to understand to how it can take action on 
>>problems if it is not an ongoing entity.
>>
>>The description says that it is a "body" with representatives 
>>selected by the relevant bodies. Accepting that "relevant" is to be 
>>decided later, it is unclear under whose auspices this body is 
>>convened, and how we can ensure that it remains free from capture 
>>or malformation. It was suggested in Frankfurt that this body could 
>>be akin to (or even identical to) the IANA-CWG, but given that the 
>>entire concept of this elaborate infrastructure is to allow ICANN 
>>to be completely excluded from the IANA management process, 
>>presumably because it has ceased to carry out this function as well 
>>as all parties claim it is now doing, what makes us think that 
>>ICANN would take responsibility for this, or more to the point, 
>>could be trusted to do it properly?
>>
>>So how this body, which is the critical keystone [ 
>>http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this 
>>entire superstructure depends, constituted, and funded. And how 
>>does one ensure that it is not corrupted, or captured? Or sued. A 
>>body as large as it will have to be will require infrastructure 
>>such as a secretariat - how do we ensure that IT is not subverted 
>>(just look at all the effort that has gone into ensuring an 
>>independent ICG secretariat)? And without a corporate backing of 
>>the PRT, its members would be personally liable in the case of a 
>>lawsuit. Who would want to serve on such a group? Moreover, in an 
>>environment where the PRT is taking very significant decisions, 
>>both financial offers and personal threats would be an effective 
>>method of capture (and presumably this is all volunteer work, or at 
>>most a modest stipend).
>>
>>Surely, the PRT, which is implicitly all powerful, would need a new 
>>oversight mechanism over it! And who oversees THAT oversight body?
>>
>>Customer Standing Panel (CSC)
>>
>>It is unclear exactly what this body monitors. If it is JUST 
>>service levels committed to by IANA, the composition may be ok. But 
>>if it is also responsible for ensuring that IANA is following 
>>policy, then the composition MUST reflect the multi-stakeholder 
>>body or bodies that created such policy. You cannot presume that 
>>the customers, who may have been vehemently opposed to any specific 
>>policy, will report that such a policy is not being policy. If the 
>>CSC is NOT monitoring adherence to policy, then who is? It does not 
>>seem to be covered in the proposal. During e-mail discussions, 
>>someone said it was the job of the (for the gTLD space) GNSO. But 
>>it does not have the staff or Bylaw mandate to do so, nor would it 
>>have any standing to complain to whoever it is that would attempt 
>>enforcement (the PRT??).
>>
>>There is reference to Liaison from ACs and SOs on the CSC. In the 
>>ICANN context, a Liaison has no power other than that of 
>>persuasion. They have no power to act if they are in disagreement 
>>with the majority of the full members.
>>
>>Cost
>>
>>Cost has been mentioned briefly above, but it is a significant 
>>issue. Aside from the costs of the infrastructure we are discussing 
>>here, there is the cost of IANA. Currently this is funded by ICANN. 
>>If ICANN were to be taken out of the picture (and the possibility 
>>of doing that is the ONLY reason for building all of this), where 
>>does the funding come from? From ICANN, out of the goodness of its 
>>heart, despite no longer having ANY control over how much money is 
>>demanded or how it is spent? By the gTLD registries, who have said 
>>they would likely fund THEIR part of the costs, but not the entire 
>>thing. By the ccTLDs who have clearly said we should not depend on 
>>them (with a few exceptions)?
>>
>>Acceptability
>>
>>The last time I heard Larry Strickling talk about the stewardship 
>>transition, he said it would only take place if sufficient controls 
>>were put in place to address ICANN messing up (i.e., in the 
>>extreme, a rogue Board). That PRESUMES that it is ICANN at the 
>>centre of the IANA stewardship - why else would we care about ICANN 
>>accountability if ICANN were not involved. From that, my take is 
>>they envision the IANA responsibility being transferred to ICANN. 
>>The Kelly bill clearly presumes this as well - why else would it be 
>>attempting to put so many constraints on ICANN?
>>
>>It is not at all clear that a proposal such as one that the CWG has 
>>put in this draft would be acceptable to the US government.
>>
>>It will certainly not be a favoured proposal from the point of view 
>>of the ICANN Board (who may not have a direct say in this but 
>>cannot be totally ignored either).
>>
>>Integratability
>>
>>The ICG will be tasked with integrating the CWG proposal with that 
>>of the RIRs and the IETF. Although this is clearly their job and 
>>not ours, I have always believed that one needs to look ahead to 
>>ensure that there are no impassable roadblocks ahead.
>>
>>We do not definitively know what those proposals will be, but 
>>indications are emerging. Both bodies seem to be happy with how 
>>ICANN is managing IANA, but both feel that in the event of any 
>>untoward action, they could move the responsibility associated with 
>>their areas somewhere else. Since in both cases, it is the same 
>>body that sets the policy that would judge it, no great complexity 
>>is involved. In ICANN's case, since the bodies that set policy in 
>>the names space are (to a large extent) an integral part of ICANN, 
>>they cannot take action against their "parent" (so to speak). Thus 
>>this cumbersome alternative.
>>
>>Integrating these two approaches may be difficult.
>>
>>Lost Opportunity
>>
>>Part of the IANA Stewardship Transition is to put in place suitable 
>>ICANN accountability and governance changes so as to ensure the 
>>continuity of the IANA function.
>>
>>If all of the questions posed here, and the ones raised by others 
>>are addressed, we would end up moving from a situation where an 
>>entity (the NTIA of the US government) awards the IANA contract. 
>>The contract is currently held by ICANN but in theory at some 
>>future date, it could be awarded to some other organization, 
>>removing ICANN from any operational connection to ICANN.
>>
>>The new situation would be where Contract Co. awards the IANA 
>>contract. The contract will initially be held by ICANN but in 
>>theory at some future date, it could be awarded to some other 
>>organization, removing ICANN from any operational connection to ICANN.
>>
>>Notice the parallel wording. ICANN really has no motivation to 
>>change to effect this change. And in all likelihood any change 
>>associated with this transition will be minimal.
>>
>>If we go down the path of the current draft CWG proposal, I believe 
>>that a major opportunity will have been lost to reform ICANN.
>>
>>Alternative
>>
>>Simply criticizing the current CWG draft proposal is not 
>>particularly useful without alternatives. My alternative is certain 
>>to not please some of the parties in this discussion, but I believe 
>>that it is both possible and viable.
>>
>>All of the complexity of the CWG draft proposal is there to cover 
>>the eventuality that ICANN suddenly or gracefully stops performing 
>>the IANA function to the satisfaction of the community. That was 
>>indeed the situation a number of years ago, and ICANN took 
>>effective action to rectify the problems (that is, the NTI did not 
>>have to yank the contract to fix the problems). At the moment all 
>>parties seem to agree that there are no significant outstanding 
>>major problems, certainly none that could justify a change in the 
>>status quo. But there is a recurrent fear of "what if". What if 
>>ICANN had the IANA responsibility in perpetuity and stopped caring. 
>>Or had a Board that deliberately and without community support took 
>>action or inaction to harm how the IANA functions are carried out 
>>(the "rogue Board scenario).
>>
>>These worst case alternatives are indeed possible. And since under 
>>the current ICANN Bylaws, the Board is effectively sovereign, 
>>little could be done short of changing the Board over a period of 3+ years.
>>
>>I suggest that there are ways to alter ICANN's Bylaws to allow the 
>>effective control of an out-of-control Board. These mechanisms will 
>>not be particularly appreciated by the ICANN Board, but I believe 
>>that such measures (or something similar) would be adopted if that 
>>is what is required to be granted IANA.
>>
>>There are a number of components that I will describe. They are not 
>>necessarily a complete or even the correct set. Putting in place a 
>>complete set of cohesive recommendations is what the Accountability 
>>CCWG is being convened for. But the existence of the following as a 
>>starting point, I believe, demonstrates that there IS a way to proceed forward.
>>
>>-       ACs and SOs must be given the ability to recall their 
>>sitting Board member. There will be no need to await the end of the 
>>current 3-year term.
>>-       Certain classes of decision regarding IANA can only be made 
>>with (for an example) a supermajority (2/3) of the Board's maximum 
>>Bylaw-mandated membership approving the decision. Without the bulk 
>>of the AC/SO Board members, there will not be a critical mass of 
>>Board members to take such a decision.
>>-       Certain classes of decision regarding IANA may only be made 
>>after notification period and public comment. This would allow the 
>>ACs and SOs sufficient time to act to recall their Board members
>>-       It is possible that the composition of the Board might need 
>>to be slightly altered to ensure that a recall of most but not all 
>>AC/SO Board members would be effective in halting action. Or a 
>>higher threshold than supermajority might be needed.
>>-       Bylaws regarding GAC advice related to IANA might need to 
>>somewhat altered to compensate for the GAC not having sitting Board members.
>>-       Similarly, non-affiliated ccTLDs would need to be worked 
>>into the equation.
>>-       If allowed under California law, the Bylaws could be 
>>require that under certain circumstances, a Board decision could be 
>>appealed to an external body (similar to the proposal's Independent 
>>Appeal for IANA decisions) and that the decision would be binding 
>>and enforceable in courts.
>>
>>
>>
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