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

Thu Oct 23 17:30:01 UTC 2014

Greg – thanks for your contribution.  If the GNSO, ccNSO, etc. cannot enter into contracts, and assuming that we want to have some arrangement that is legally binding, what are the options from this perspective:

·         GNSO, ccNSO, ALAC etc. all incorporate and enter into the contract with ICANN/IANA?

·         IANA becomes a standalone corporation, likely with GNSO, ccNSO, IETF, RIR etc. representation on its board, with some binding undertaking from ICANN to fund it (I think this is close to what Milton has suggested).

·         The community comes to a written understanding as to what the ‘IANA functions’ will comprise going forward, and the ICANN bylaws are amended to obligate it to respect this ‘understanding’.

Are these valid legally?  Can you think of any others?

From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Greg Shatan
Sent: October-23-14 1:06 PM
To: cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] [IANA-issues] Fwd: Names Community vs the other two communities

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<mailto: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<mailto: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<mailto: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<mailto: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><mailto:gurcharya at gmail.com>

To:

cwg-stewardship at icann.org<mailto: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<http://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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