[CWG-Stewardship] Concern with Contract Co.

Sun Nov 30 20:27:39 UTC 2014

Holly,

My comments inline.

Greg

On Sun, Nov 30, 2014 at 2:58 PM, Holly Raiche <h.raiche at internode.on.net>
wrote:

> 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) [GS - No, not the AoC -- the IANA Contract] with
> ICANN - to ICANN.
>

GS:  I think this is a very fundamental misunderstanding.  The NTIA is not
looking to hamd its responsibilities to ICANN.  It is looking to hand these
over to the "global multistakeholder community."  Here is what it says in
the NTIA's initial press release:

[t]he U.S. Commerce Department’s National Telecommunications and
Information Administration (NTIA) today announces its intent to* transition
key Internet domain name functions to the global multistakeholder community*.
As the first step, NTIA is asking the Internet Corporation for Assigned
Names and Numbers (ICANN) to convene *global stakeholders to develop a
proposal to transition the current role played by NTIA* in the coordination
of the Internet’s domain name system (DNS).

*NTIA’s responsibility includes the procedural role of administering
changes to the authoritative root zone file – the database containing the
lists of names and addresses of all top-level domains – as well as serving
as the historic steward of the DNS. * NTIA currently contracts with ICANN
to carry out the Internet Assigned Numbers Authority (IANA) functions and
has a Cooperative Agreement with Verisign under which it performs related
root zone management functions.  *Transitioning NTIA out of its role *marks
the final phase of the privatization of the DNS as outlined by the U.S.
Government in 1997.
Honestly, this is not (and cannot be) about transitioning the NTIA's role
to ICANN.  I think you will find this reinforced in the ICG's charter and
RFP and our group's charter as well.  )

> 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,
>

GS: ICANN overseeing itself as a replacement for external oversight and
accountability is a non-starter for many stakeholder communities.  Plus, it
seems unworkable to me.  I am keen to see increased accountability built
into ICANN; while that is "interrelated and interdependent" with the
transition of the NTIA's role, it gets beyond our scope (and into the
Accountability CWG) when it gets beyond oversight and accountability
relating to IANA activities.  Focusing solely on broad ICANN accountability
does little or nothing to replace the NTIA's role in regards to IANA.
.

> 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.
>

GS:  A separate legal organization is necessray to enter into contract with
ICANN.  Testing and refining this proposal should be part of the process
(indeed, it is mandated in Section 4 of the RFP), and the process should be
iterative.  The fact that this proposal hasn't been fully battle tested is
no reason to disqualify it -- if that were the case, we would never have a
proposal -- the testing is part of the process to get to the proposal.

Greg

>
> 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*
> *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/>*
>  _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
>
>

-- 

*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/>*
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-stewardship/attachments/20141130/ad75bd70/attachment-0001.html>