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

Sat Nov 29 17:45:43 UTC 2014

sent from Google nexus 4
kindly excuse brevity and typos.
On 29 Nov 2014 21:04, "Phil Corwin" <psc at vlaw-dc.com> wrote:
>
> Alan-thank you for sharing your thoughtful concerns – and thanks as well
to Olivier, Milton, and others who have responded to it with equal
thoughtfulness.
>
>
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> ·         As an attorney I am quite comfortable with the concept of a
Contract Co. as the accountability mechanism, while recognizing that there
are many details yet to be filled in, which is the problem when you are
trying to build an airplane while flying it. But I recognize that the
alternatives broached by Alan and others may be worthy of exploration, even
if to be eventually dismissed, in the process of achieving broad consensus.
>
Interesting you already concluded other options will fall prey of being
dismissed. Maybe it's just the way we have all been  systematically swayed
into believing there is an extraordinary gold mining in what IANA does and
the only way to secure it is by contracting.
As I have said before, we will only be deceiving ourselves by saying a
contracting route in the manner presented is the only way to ensure
Accountability of the IANA operator... there are just 2 things required:

- Maintain current separation of IANA department to allow for separability.
- Ensure IANA record keeping is done by policy

To achieve that without creating all the complicated entities et all. This
community needs to recognise that IANA is set of bounded functions that
does not need to be separated at the moment. It is at that point that a
legal way to reflect those 2 features above can then be determined.

>
Again, for me the key question is whether there is sufficient consensus
within the CWG to publish the present proposal on Monday. If there is not
then the community should really not be asked to spend the considerable
time required to comment upon it.
>
A question which was obviously skipped in this process.

>  <snip>
>
> I hope those thoughts are of some helpfulness.
>

Thanks

Cheers!
>
>
> Best to all, Philip
>
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> Philip S. Corwin, Founding Principal
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> From: cwg-stewardship-bounces at icann.org [mailto:
cwg-stewardship-bounces at icann.org] On Behalf Of Olivier MJ Crepin-Leblond
> Sent: Saturday, November 29, 2014 4:40 AM
> To: cwg-stewardship at icann.org
> Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an
alternative option
>
>
>
> 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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>>
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>>
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>>
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