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

[Milton L Mueller]

Alan,
After reading your contribution, I think that most of the proposals you make are more appropriate to the CCWG on enhanced accountability. That is, you are referring to recalling board members, voting margins by the ICANN board, by-laws regarding GAC advice, and so on. These are all matters relating to ICANN in its role as a policy maker and policy enforcer, and not as _implementer_ of policy via the IANA's modification of the DNS root zone.

There has been general agreement on the principle that policy making and its implementation in the root zone should be separate and distinct processes. That is why IETF is separate from IANA, why RIRs are separate from IANA. And while there is no hard and fast line barring ICANN from doing both under proper safeguards, most people recognize the inherent danger of a corporate entity with the unchecked power to implement root zone changes without bottom up, open and consensual policy development That is one reason why NTIA established the role it did as backstop for the root zone, and why the IANA contract required IANA employees to stay out of policy processes.

Therefore, this CWG has taken the correct approach of trying to replace the necessary elements of the NTIA role, in order to make both the IANA functions operator accountable to its customers, and to make ICANN's policy process less prone to abuse. The idea that we can simply give IANA to ICANN permanently and rely on internal accountability for it to avoid abusing these mixed up roles is never going to be accepted by a substantial portion of the community.

And since your message also made some comments about the acceptability of the current proposal to the US government, let me point out to you that the Kelly bill actually would _require_ IANA to be pulled out of ICANN and formed as a separate corporation; which means that your proposal would certainly NOT be acceptable to the Congress. My most recent blog post performs a detailed analysis of the Kelly bill http://www.internetgovernance.org/2014/11/28/laws-sausages-and-the-iana-transition-part-2-the-kelly-bill/

You made some good comments about some of the ambiguities surrounding the relationship between the CSC, PRT and Contract Co. As you may have noted, on the call I agreed with some of those points. But those comments justify further development and perhaps modification of the current plan; they do not in any way justify starting from scratch.

--MM

From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Alan Greenberg
Sent: Saturday, November 29, 2014 12:24 AM
To: CWG Stewardship
Subject: [CWG-Stewardship] My concerns with the draft proposal and an alternative option

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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