[CWG-Stewardship] [IANA-issues] Fwd: Names Community vs the other two communities

Thu Oct 23 17:25:20 UTC 2014

Greg,

You suggest that IANA should be removed from ICANN and transferred to a new
legal entity that is a wholly-owned subsidiary of ICANN. There can then be
a SLA between ICANN and the subsidiary.

I think I like this idea.

But can you suggest a mechanism to ensure that the decision of changing the
IANA operator from the subsidiary to a new entity in the future will rest
with GNSO/CCSNO and not the ICANN board.

On Thu, Oct 23, 2014 at 10:35 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> All,
>
> A few thoughts/suggestions in response to recent posts in this thread:
>
> 1.  *Make IANA a Subsidiary of ICANN*.  In order to promote structural
> separation, and to allow for future separation of the IANA group from ICANN
> should that become appropriate, IANA could become a wholly-owned subsidiary
> of ICANN (rather than a department).  This would allow other entities to
> contract directly with IANA, rather than contracting with ICANN for IANA
> services.This would also make future separation easier (and should make the
> threat of separation as an accountability mechanism more realistic).
>
> 2.  *All Stakeholder Groups should be part of the Entity/Group with ICANN
> Oversight*.  Oversight of the IANA functions for the naming community
> should not be left solely (or even primarily) to its direct "customers."
>  An essential part of the multistakeholder construct is that all Internet
> stakeholders (aka "the Global Multistakeholder Community") are affected,
> directly or indirectly, by these matters.  This CWG is roughly
> representative of those stakeholders.  Any group or entity designated or
> created to hold steward/oversight responsibility should be similarly
> representative.
>
> 3.  *An Unincorporated Association has Issues*.  It is true that the NFL
> is an unincorporated association.  However, I believe that it uses
> incorporated entities (e.g., NFL Media LLC, NFL Properties LLC, NFL
> Enterprises LLC) or the the individual teams to enter into most (if not
> all) contracts. (I believe that the income of the NFL itself (which
> considers itself a trade association) is primarily dues from teams; all
> other revenue flows elsewhere.)  Under US law, an unincorporated
> association is not a legal entity apart from its individual members.  Thus,
> unincorporated associations cannot enter into contracts unless the
> unincorporated association's home State has specific enabling
> unincorporated associations to enter into contracts.  (I don't know what
> California law says on this matter, assuming one would want the
> unincorporated association's "home" to be California.)  Also, individual
> members of an unincorporated association have full personal liability for
> the acts of the unincorporated association (in contrast to corporations and
> other "limited liability" entities, which act as a shield against personal
> liability under most circumstances)  I doubt that stakeholder groups or
> representatives would want to assume personal liability for the acts of the
> group.
>
> 4. *An Entity Immune from "Rogue" Litigation Attacks is also likely to be
> Immune from Legitimate Litigation*. The issues of jurisdiction, domicile,
> immunity, etc. are complex and beyond the scope of this email.  However,
> the idea that an entity can be immunized from rogue litigation while still
> being subject to legitimate litigation is far-fetched.  Legitimate
> litigation is an important accountability mechanism (although a relatively
> extreme one).  The threat of "rogue litigation" is overblown, in my
> opinion, and is another "bogeyman" that should be avoided.  Most litigation
> is not objectively frivolous or baseless; if it is, it will likely be
> dismissed relatively quickly and there may be sanctions against the
> plaintiffs and their counsel.  Furthermore, avoiding litigation is not as
> easy as changing the state or country of incorporation -- there are "long
> arm statutes" and many other ways of dragging defendants into court as long
> as the entity or its activities have a reasonable nexus with the location
> of the litigation.  If we are concerned about accountability, I don't think
> we should be in the business of shielding entities from litigation.
>
> Greg Shatan
>
> (Caveat:  Although I am a practicing attorney, I offer the above in my
> personal capacity and it does not constitute legal advice.)
>
> On Thu, Oct 23, 2014 at 11:48 AM, Kris Seeburn <seeburn.k at gmail.com>
> wrote:
>
>> Milton,
>>
>> Very much in agreement with you on this. I think in one of the threads it
>> was also clear that coming back to the ccNSO, GNSO we are part of the ICANN
>> entity itself and within the entity where ICANN does the naming. Obviously
>> as one would say since ICANN has the required infrastructure to support the
>> number resources where IANA comes in.
>>
>> IANA as much as sometimes Avri did mention is like we could call it a
>> dept or the likes. But one thing important in this concept is that when it
>> comes for the NRO - Numbering part the Policy is made from regional areas
>> already and is brought in through the MoU and a converged decision. Somehow
>> as i mentioned before it is slightly easier for them.
>>
>> Now coming down to the thinking process. From my RIR standpoint it was
>> fine and still fine to have a contract - MoU for IANA to still be under
>> ICANN to continue the management process. IETF is also another loose
>> contract with ICANN for the IANA function. But IETF is also a core of the
>> infrastructure of IANA. If they are not around things may crumble pretty
>> much.
>>
>> From ALAC/NCUC the process is stalling as we seem to not formally realise
>> that we are part of the beast - ICANN. The question is from the different
>> SOs how do we ascertain the transparency and accountability process is
>> maintained which means no government control and i think this can be
>> achieved independently from having the GAC as part of the process and no
>> direct government involvement.
>>
>> Perhaps one way to look at the problem is as much as we have setup this
>> cross working group is a foresight answer to the problem already. Why not
>> the CWG creates a council of membership from the different stakeholders in
>> it and becomes the community that ensures the names part and maintain the
>> accountability.
>>
>> As far as i remember these were the considerations:
>>
>> The considerations:
>> (a) protection of the root zone from political or other improper
>> interference;
>> (b) integrity, stability, continuity, security and robustness of the
>> administration of the root zone;
>> (c) widespread [international] trust by Internet users in the
>> administration of this function;
>> (d) support of a single unified root zone; and
>> (e) agreement regarding an accountability mechanism for this function
>> that is broadly accepted as being in the global public interest.”
>>
>> As far as i remember these were the solutions characteristics:
>>
>> (a) offers a legal structure that is robust against rogue litigation
>> attacks
>> (b) is aligned with the Internet technical infrastructure in a way that
>> supports innovative, technology based evolution of the DNS .
>> (c) is an inclusive model
>> (d) is a demonstrable improvement on current processes in this area
>>
>> If these are the core principles it should not take much time to
>> accomplish a resolution. Legally stating can ccNSO, GNSO etc., create a
>> legal, i am pretty much doubtful but we can create a council or something
>> that can take the different SOs to be managing and ascertaining the same
>> processes. IETF on the other hand is housed under ISOC. IETF would not be
>> able to house us. We need to still bear in mind we are part of ICANN here.
>> Unless we are looking at decoupling ourselves from ICANN which is not
>> worth.
>>
>> We need to bear in mind IETF, IAB are closely housed into ISOC which is
>> the entity /organisation that does the management / operational aspect.
>>
>> My two cents worth.
>>
>>
>>
>> On Oct 23, 2014, at 7:17 PM, Milton L Mueller <mueller at syr.edu> wrote:
>>
>>
>>
>> Fouad:
>>
>> By the “technical community proposals” I assume you mean the protocols
>> community.
>>
>>
>>
>> What your argument misses is that IANA _*is*_ a separate organizational
>> entity for both the numbers and protocols communities.
>>
>>
>>
>> The protocol community has an MoU with ICANN that authorizes ICANN to
>> perform the IANA functions for them. That MoU can be revoked, and IETF can
>> decide to use someone else. That is the perfect accountability mechanism.
>> Now, tell me how the names community achieves that same wonderful state?
>> There are two ways to do it: pull the IANA out of ICANN, or set up a new
>> contracting authority to replace the NTIA, which could periodically award
>> the contract to ICANN or to anyone else qualified.
>>
>>
>>
>> No one wants “the IANA technical and policy functions [might] fall into
>> the hands and whims of governments.” That in fact is a requirement imposed
>> on the transition by the NTIA. But we do need to make significant
>> organizational changes if we are to meet the requirement of accountability.
>> I think scare talk about take overs can divert our attention from needed
>> reforms and I would resist that kind of talk.
>>
>>
>>
>> I don't think that IANA should be evolved as a separate entity at all and
>> create new opportunities for bureaucracies for governments and industry
>> control.
>>
>>
>>
>> The technical community proposals are highly reasonable to not make such
>> a big fuss out of it and help IANA transition under a body that is somewhat
>> messed up but can be improved in the long run however, ICANN would need
>> some changes.
>>
>>
>>
>> The technical community has also shown its concern that it doesn't want
>> the IANA technical and policy function to fall into the hands of the whims
>> of governments because it functions to the technical community's needs
>> adequately in its present environment and role.
>>
>>
>>
>> Your challenge and for the ICG is to propose that most transparent and
>> accountable way forward that ensures an open and inclusive relationship
>> with the Internet community treating stakeholders in their respective roles
>> but not giving preference to one group over another another. I don't have
>> to go through the Internet Governance ideals over and over again here.
>>
>>
>>
>> First ICANN Board control as the final word for IANA affairs would have
>> to be reviewed and should be taken into a broader community review process.
>> I do not trust the ICANN Board to be able to manage both ICANN and IANA in
>> a transparent and accountable way, their progress over the years has had
>> its own set of troubles already.
>>
>>
>>
>> The proposals are interesting but not the final word. The final word will
>> remain with NTIA and thats my concern from a developing country member
>> citizen perspective. I am going through a great deal of suggestions and
>> proposals and all show a similar aspect, don't disturb the IANA technical
>> function and the policies for IANA developed by the community have work so
>> far but require more transparency, accountability and functional
>> relationships with the community ensuring open and inclusive participation
>> in its policy development processes.
>>
>>
>>
>> On Thu, Oct 23, 2014 at 7:27 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
>> wrote:
>>
>>  +1 Option 2 is preferred from my end also. However i also added Option
>> 4 as a second preference just incase things get delayed with the
>> accountability process.
>>
>> Cheers!
>>
>>
>>
>> On Thu, Oct 23, 2014 at 3:15 PM, Olivier MJ Crepin-Leblond <ocl at gih.com>
>> wrote:
>>
>> Hello all,
>>
>> you might wish to see an expanded set of "Options", in a Google Doc which
>> has been shared.
>>
>>
>> https://docs.google.com/document/d/1B46mlsyZUFF4bZfeWgGCdqIQHCP2BMOy4KZU4RiRiE8/edit?usp=sharing
>>
>> So far, I note that the majority of our participants on the At-Large IANA
>> Issues WG appears to prefer Option 2.
>>
>> Kind regards,
>>
>> Olivier
>>
>>
>>
>>  On 15/10/2014 22:55, Olivier MJ Crepin-Leblond wrote:
>>
>>  FYI
>>
>>
>>
>> -------- Forwarded Message --------
>>
>> *Subject: *
>>
>> [CWG-Stewardship] Names Community vs the other two communities
>>
>> *Date: *
>>
>> Thu, 16 Oct 2014 02:40:47 +0530
>>
>> *From: *
>>
>> Guru Acharya <gurcharya at gmail.com> <gurcharya at gmail.com>
>>
>> *To: *
>>
>> cwg-stewardship at icann.org
>>
>>
>>
>> How the names community approach will differ from the approach adopted by
>> the numbers community and protocols community?
>>
>>
>>
>> Numbers Community: APNIC has reached consensus on its proposal. According
>> to the proposal, IANA will continue to reside in ICANN. It proposes to
>> replace NTIA oversight with a Service Level Agreement (SLA) and Affirmation
>> of Commitment (AOC) between NRO and ICANN.
>>
>> www.slideshare.net/fullscreen/apnic/report-ianatransition/1
>>
>>
>>
>> Protocols Community: The IETF draft proposal suggests that no structural
>> changes are required as a result of the transition. The MOU between ICANN
>> and the IETF community will continue to govern the existing relationship.
>> Again, IANA will continue to reside in ICANN.
>>
>> http://tools.ietf.org/html/draft-ietf-ianaplan-icg-response-00
>>
>>
>>
>> Therefore, neither the numbers community, nor the protocol community
>> appear to be in the direction of suggesting a new MS Oversight Entity to
>> replace NTIA and its oversight. Merely contracts between existing entities
>> will be updated to replace NTIA oversight.
>>
>>
>>
>> Can the names community adopt a similar approach? Can a contractual
>> agreement (SLA/AOC/MOU) between ICANN and GNSO/CCNSO be expected to replace
>> NTIA oversight?
>>
>>
>>
>> Clearly NO! This approach can not be adopted by the names community
>> because the names community resides within ICANN, which is also the IANA
>> operator. Specifically, GNSO and CCNSO are essentially subsets of ICANN,
>> and therefore a contractual agreement (SLA/AOC/MOU) between ICANN and
>> GNSO/CCNSO can not be expected to replace NTIA oversight.
>>
>>
>>
>> Therefore, it is essential to either
>>
>>
>>
>> Option (i): create a new legal entity, which has a contractual oversight
>> relationship with ICANN. This would be similar toÂ
>> http://www.internetgovernance.org/2014/08/04/students-school-faculty-on-iana-transition-the-meissen-proposal/
>>
>>
>>
>> Option (ii): expect ICANN to self-regulate
>>
>>
>>
>> Option (iii): make a new legal entity comprising of CCNSO and GNSO that
>> is structurally independent of ICANN and require that new entity to enter
>> into a contractual oversight agreement (SLA/AOC/MOU) with ICANN.
>>
>>
>>
>> From the above three options, clearly option (ii) is not acceptable
>> because of the lack of trust in the ICANN enhanced accountability process.
>>
>>
>>
>> I also feel that option (iii) is not feasible because the CCNSO and GNSO
>> are heavily integrated with ICANN and structural separation of these two
>> communities from ICANN will be in-feasible.
>>
>>
>>
>> Also, from the Jordan Carter document, the option on page 7 can be
>> discarded, which makes ICANN the oversight body, as IANA will continue to
>> reside in ICANN, as clearly suggested by the proposals of the protocols and
>> numbers community.
>>
>>
>>
>> Therefore, option (i) is clearly the only option available with the names
>> community.
>>
>>
>>
>> Regards,
>>
>> Acharya
>>
>>
>>
>>
>>
>>
>>
>>   _______________________________________________
>>
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>>
>> Iana-issues at atlarge-lists.icann.org
>>
>> https://mm.icann.org/mailman/listinfo/iana-issues
>>
>>
>>
>>  --
>>
>> Olivier MJ Crépin-Leblond, PhD
>>
>> http://www.gih.com/ocl.html
>>
>>
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>>
>>
>>
>>
>> --
>>
>> ------------------------------------------------------------------------
>>
>>
>>
>> *Seun Ojedeji, Federal University Oye-Ekiti web:      *
>> *http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/> **Mobile:
>> +2348035233535 <%2B2348035233535>*
>> *alt email: <http://goog_1872880453/>seun.ojedeji at fuoye.edu.ng
>> <seun.ojedeji at fuoye.edu.ng>*
>>
>> The key to understanding is humility - my view !
>>
>>
>>
>>
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>>
>>
>>
>>
>> --
>> Regards.
>> --------------------------
>> Fouad Bajwa
>> ICT4D and Internet Governance Advisor
>> My Blog: Internet's Governance: http://internetsgovernance.blogspot.com/
>> Follow my Tweets: http://twitter.com/fouadbajwa
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>>
>> Kris Seeburn
>> seeburn.k at gmail.com
>>
>>    - www.linkedin.com/in/kseeburn/
>>
>>
>>
>>
>>
>>
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