[CWG-Stewardship] Concern with Contract Co.

Sun Nov 30 19:58:55 UTC 2014

Greg and Olivier

What has not been explained is the perceived need to have some kind of Contract Co.   My understanding is that the NTIA is looking towards handing its responsibilities for oversight of the IANA functions - now performed under contract (AoC) with ICANN - to ICANN.  Thus, the reason for a contract (and contracting entity of some kind) was that there are two legal organisations - NTIA and ICANN - with a legal agreement between then on which legal organisation performs what functions.  If NTIA’s functions are handed over to ICANN, why is there need of another legal organisation?  ICANN can simply assume the oversight functions, and make whatever changes are necessary within its structure - including establishment of an entity within it (it already has entities such as SSAC, GNSO ec) with a specific set of oversight functions.  And, as Alan suggested, changes could include a good look at By-laws so that there is increased accountability to the community of stakeholders that have very clear and strong interests in a well functioning and responsible ICANN, including its oversight of IANA’s functions.  And again, to repeat Alan’s questions, if a new corporate organisation is created, to whom is it accountable, through what mechanisms, and who funds it? (why should ICANN fund a corporate organisation external to itself?)

I still think we should have a good look at the tests that Bertrand sent to the list - and test whether a new structure can deal with those stress tests.  Indeed a question whether a new Contract Co could deal with the stress tests better than a reformed ICANN is an open one.  Yes, agreed that the pure trust law model doesn’t work. But  I do want to understand why a separate legal organisation is necessary when questions of its funding, structure, accountability to all stakeholders haven’t been solved.

Holly

On 1 Dec 2014, at 5:50 am, Greg Shatan <gregshatanipc at gmail.com> wrote:

> Olivier,
> 
> I think we did look at the "trust" proposal on the email list before Frankfurt.  Indeed, I think many of the aspects of the trust proposal have made their way into the current proposal (other than the use of a "trust" entity).  Avri points this out in this thread.
> 
> I think that the current proposal amalgamates aspects of many of the other proposals that were on the table during the course of this proposal.  This kind of "magpie" approach is what was expected, and I think it worked.  Frankly, I don't think an "internal to ICANN" proposal was ever put on the table within the group prior to Frankfurt in any kind of tangible, concrete fashion.
> 
> As for the entity vs. legal entity issue -- I think we've beaten this to death by now.  If we have a contract, we need a legal entity to enter into it with the IANA Functions Operator.  So, while it is not a done deal that Contract Co. is a non-profit corporation (though I don't see a better form suggested), it is a done deal in this general structure that Contract Co. is a legal entity.
> 
> Specifically, there are a number of technical/legal reasons a trust per se is ill suited here.  There needs to be a Settlor (aka Grantor or Trustmaker) who needs to contribute an already existing piece of property (owned by the Settlor) to the Trust at the time of its formation.  The Beneficiary of the trust must be an entity that is capable of taking and holding title to the property (i.e., it must be a legal entity).  I've tried to think of ways to make it work, but it just keeps feeling like a square peg in a round hole.  (Also keep in mind that a Trust is a legal entity, created in a certain jurisdiction.)  Nonetheless, the idea of a lightweight, limited-purpose entity, which originated in the "trust proposal," made its way into the current proposal, as did other aspects of the trust proposal.
> 
> This should not be viewed as a boxing match between proposals, where it is one or the other.  This is a fundamental mischaracterization of the process.  Rather, the process should be viewed like a table full of building blocks, where loose pieces (wherever they came from originally) are put in place to fill needs as the proposal comes together.  Continuing that analogy, it is less likely that pieces put on the table after the proposal has been built will make their way in, unless they are superior solutions to existing components.  Pieces that require the entire proposal to be scrapped and started over are not likely to be looked at as favorably by many at the table (except by their contributors) as they would have been earlier in the process.  I'm not saying these are off the table -- but they are not as likely to be picked up from the table.
> 
> Finally, I would disagree with your characterization of what happened in Frankfurt, except for your statement that "warnings ... gained no traction for various reasons which I would not attribute to Groupthink."  I agree this should not be attributed to Groupthink, but rather to legitimate reasons for lack of traction.  Further, I think certain warnings not only "gained traction" but contributed to improving the proposal -- which is how this should work.
> 
> Greg
> 
> On Sat, Nov 29, 2014 at 4:12 AM, Olivier MJ Crepin-Leblond <ocl at gih.com> wrote:
> Dear Greg,
> 
> On 29/11/2014 07:05, Greg Shatan wrote:
> > It is certainly my recollection that there were some discussions that
> > involved alternatives to creating a corporation (whether another type
> > of legal entity, such as a trust, or a group that had no legal status,
> > such as a committee).  It was even suggested that an existing
> > organization, such as the IETF (not a legal entity, actually) or ISOC
> > or the IETF Trust (which exists to hold and license IPR), could be
> > used to contract with the IANA Functions Provider.  I think these
> > tended to fall away and did not find traction as we moved along,
> > especially as the use of a contract came to the fore, which required
> > an entity capable of contracting.
> 
> I do not recall having a real stab at the alternatives. The "Trust"
> model was never given a chance to be discussed. Neither was the option
> of keeping the contracting function within ICANN with internal
> mechanisms that might create a linked entity like the ASO/NRO using
> MoUs. A lot of ICANN's model is based on these MoUs. Or a model based on
> SLA, processes and obligations which automatically trigger remedial
> processes overseen by a neutral organisation has not been discussed either.
> 
> Instead, as Guru very correctly described, we ended up with reaching a
> model of entities which were initially entities in the wider sense of
> the term (hence avoiding the use of the term "bodies" which could be
> seen as being a legal entity) and working on the functions of 4
> entities. (in addition to the IANA Operator itself)
> The 4 entities are described on the flowchart as:
> - IANA Customer Standing Committee (CSC)
> - IANA Periodic Review Team (PRT)
> - Independent Appeals Panel for Policy Implementation (IAP)
> - IANA Contracting Entity
> 
> They are all marked as "entities" so I never felt that any final
> decision had been made on whether they would be incorporated.
> 
> I also applaud Guru's overall description of the Frankfurt meeting. He
> also points out that multistakeholder models appear to be driven by lack
> of time. Only this is no small decision that will marginally affect the
> future of the naming functions. What is designed here needs to withstand
> the test of time and any future challenges. Designing this by jumping
> into the first solution without considering other solutions is dangerous
> - especially when it might well have been the result of Groupthink.
> During the meeting I saw several warnings being uttered not only by the
> At-Large participants but also by independent participants as well as
> ccTLD representatives and others, yet these gained no traction for
> various reasons which I would not attribute to Groupthink - a good
> explanation of which can be found on:
> http://en.wikipedia.org/wiki/Groupthink
> 
> I would like us to be able to go into this public comment period with a
> much more open mind and to take our blinders off. 48 hours was too short
> a time to come up with a final solution and input from our wider
> communities will no doubt open new perspectives that we will need to
> give some serious consideration to.
> 
> Kindest regards,
> 
> Olivier
> 
> ps. I have shared scenarios of threats/mitigation with the At-Large
> working group on IANA issues & will forward them to the list before the
> deadline today.
> 
> 
> 
> 
> 
> 
> 
> -- 
> Gregory S. Shatan ï Abelman Frayne & Schwab
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