[CWG-Stewardship] Concern with Contract Co.

[Greg Shatan]

Holly:

My further responses are below.

Greg

On Sun, Nov 30, 2014 at 4:33 PM, Holly Raiche <h.raiche at internode.on.net>
wrote:

> Greg
>
> Thanks for this - and my questions back to you interspersed
> On 1 Dec 2014, at 7:27 am, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> 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.
>>
> You’re absolutely correct - sorry
>
>
>>
>
> 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.  )
>
>
> One way of looking at the statement is that ICANN already encompasses
> those stakeholders globally that are involved in the functions of IANA.
>

I don't think that you can read that into the NTIA statement.  I do think
that this is a position some might take with regard to ICANN generally.  I
think it is a flawed position for a number of reasons.  First, "ICANN the
corporation" needs to be distinguished from "ICANN the community."  The
first is the IANA Functions Operator, the second encompasses stakeholders.
Handing over anything to ICANN the corporation is certainly not synonymous
with handing it over to the global multistakeholder community.  Second, I
think it is dangerous to assume that all stakeholders are encompassed by
ICANN.  For starters, the relationship of the ccTLDs to ICANN varies wildly
by ccTLD, and many would be uneasy at being considered "encompassed" by
ICANN. As the composition of the ICG shows, there are other stakeholders
concerned with names that are outside ICANN's orbit.


> I think we all have looked at the IANA functions being ‘handed over’ as
> including the numbering, the protocols and the names.
>

Again, I think this a fundamental misconception on two levels.  First, it
is not the "IANA functions" that are being handed over.  The IANA functions
are being performed by the IANA Functions Operator -- currently the IANA
group at ICANN.  NTIA's roles relating to the IANA functions -- approval,
oversight, etc. -- are what is being handed over.  Second, while it is true
that holistically, the NTIA currently performs its roles in relation to
names, numbers and protocol parameters, our remit is to provide a proposal
for replacing NTIA's role with regard to names.

Logically, the numbering function is best handed over to the structure now
> in place that already handles this function well - the ASO/RIRs.
>

Again, it is not the "numbering function" that is being handed over, it is
NTIA's oversight role relating to numbers.  That aside, they have existing
organizations that are not ICANN that can be used for that oversight
function.  Names does not have that.


> My view has been that, as long as there is increased accountability
> through mechanisms such as regular and public reporting to the community,
> plus a mechanism if the functions are not being carried out well, the
> existing structure is fine.
>

The "existing structure" involves NTIA.  So, the existing structure will
soon cease to exist.


> Similarly, the IETF does work for protocols.  Granted they want no change,
> whereas others would like more transparency and accountability in the
> protocols area - which could be worked through.  That leaves names - which
> is what this set of issues is about. And I think there is at least
> consensus that the names functions performed by ICANN can have a good hard
> look, more accountability, and a mechanism of some sort if the community -
> made up of all the stakeholders - does not agree with directions threatened.
>

That is all well and good, but if it doesn't focus on accountability for,
and oversight of, ICANN's performance of the *IANA* "names functions", that
is beyond our scope and goes into the CWG on Accountability.  As stated
before, our work is interrelated and interdependent with the CWG on
Accountability, and especially "Stream 1" of their work.  We are not
minimizing accountability, but we can't steal their brief.

>
>
>> 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.
>
> As it now exists, I think there is general agreement that real and deep
> reform at the least is necessary.
>

Right church, wrong pew. That is the remit of the CWG on Accountability.  I
understand the issue of "leverage," but we can't blast our scope to
smithereens in order to use that leverage.  We also can't adopt an "ICANN
internal" solution just because it gives us the shortest path to using that
leverage.  The proposal needs to stand on its own merits.  I'll go back to
the "interrelated and interdependent" point to show us the way on using
that leverage for larger purposes.

>
> 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.
>
> I’m now thinking of the three types of functions of IANA - are you
> suggesting that a proposed Contract Co would have oversight of the
> numbering, protocols and naming functions?  I don’t think the numbering and
> protocols stakeholders think that is necessary
>

I'm not suggesting that at all.  Again, that would be beyond our remit.
Our job is to put out a plan for numbers -- full stop. On the other hand,
it is far from clear to me how numbers and protocols will replace the
duties, obligations and performance standards that ICANN must adhere to
because they are set out in the contract.  Maybe the contents of the
contract is far less important to numbers and protocols, but that can't be
said for number.

> .
>
>> 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.
>
>
> I think you are back to my basic question and the assumption that the
> transition cannot be about ICANN oversight of IANA functions.  But ICANN
> does so now.  Yes, under contract.
>

You are looking at the wrong end of the contract.  We want ICANN to
continue doing what it is doing.  And they do it at least in part because
they are contractually obligated to do so.

You would be asking ICANN to do what NTIA is doing -- something ICANN
doesn't do now, and which would wipe out ICANN's contractual obligation to
perform certain functions up to certain standards and under certain
conditions.


> What the contract does in the eyes of many stakeholders is provide a
> mechanism of last resort if anything goes wrong - i.e., some kind of safety
> net.  So what is really being sought is a replacement structure  that can
> be a safety net.
>

This safety net (or "backstop") function is one of the things the contract
does, but it is not the only thing the contract does.  In our work, we
identified a number of functional responsibilities that NTIA carries out.
These cannot be ignored, and need to be replaced (or very good explanations
of why they don't be need to be offered).


> The answer you are postulating is a separate legal organisation - funded
> by whom, with what powers - given by whom - to do what.
>

I think answers to your question about what Contract Co. would do and what
powers it would have (primarily by means of or under instruction from the
Multistakeholder Review Team) are contained in the proposal.  As to who
will give it those powers -- these powers are the powers that NTIA is
looking to transition, so the answer is fairly simple: the NTIA will
transition those powers to Contract Co.  Funding is an area we need to
develop, and various concepts have been discussed, but they need further
work.  But given that Contract Co. is performing a service of value, and
that it is granting to ICANN various rights that have value, I doubt that
this issue is insurmountable.  Oversight by anyone is going to come at a
cost -- even internal ICANN oversight.


> I think you are also assuming that the NTIA would then cancel its contract
> (in relation to names only - or names, protocols and numbers) with ICANN
> and contract with Contract Co?
>

No, I am assuming quite the opposite.  First, your question seems to assume
that the NTIA is staying involved in some fashion.  That is clearly not the
case, regardless of the community and regardless of the solution.  The
whole point of this transition is that NTIA is disappearing from the IANA
scene entirely and with finality.  So, no, I am not assuming that NTIA
would contract with Contract Co.  Second, your question seems to
misperceive what Contract Co. is intended to be -- it is intended to be a
replacement for the NTIA as the contracting party with ICANN in ICANN's
role as the IANA Functions Operator, not an entity to act as the IANA
Functions Operator (or to serve as a middleman between the NTIA and
ICANN).  So, again, there is no way that NTIA would contract with Contract
Co.  What I am assuming (and I believe I am far from alone in this), is
that the NTIA, effective on September 30, 2015 (the end of the current term
of its contract with ICANN), will transfer to Contract Co.  the right to
allow others (initially ICANN) to perform the IANA Functions as the IANA
Functions Operator, and that Contract Co. will enter into a new "IANA
Contract" (initially) with CIANN to perform the IANA Functions as the IANA
Functions Operator.

Greg


>
> Holly
>
>
> 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*
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>> *ICANN-related: gregshatanipc at gmail.com <gregshatanipc at gmail.com> *
>> *www.lawabel.com <http://www.lawabel.com/>*
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>>
>>
>
>
> --
> *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/>*
>
>
>


-- 

*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

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