[CWG-Stewardship] [client com] The Reverse Hybrid Model

Tue Apr 14 08:29:43 UTC 2015

Maarten,

I thought the decision at Istanbul was that while Contract Co is not being
discarded, an opportunity is being given to discuss the two internal
variants of functional separation and legal separation by putting them in
the forefront. Avri put this as “It’s not that we’re killing or canceling
the Contract Co. It is put it in the background. It sits there.”

Your assertion that any discussion on Contract Co should be discouraged, as
a result of the Istanbul meeting, is incorrect.

Personally, the decision to stop focusing on Contract Co at the Istanbul
meeting was quite disturbing for me.

This decision was made at the last session of the last day and no clear
rationale was offered for it.

The transcripts clearly reflect that the CWG made attempts to predict what
the US Government may accept as a final proposal. Such determination and
predictions went beyond the 4 principles already prescribed by NTIA. The
special stakeholder status given to the US Government is completely
unacceptable to the equal footing multistakeholder model.

https://community.icann.org/pages/viewpage.action?pageId=52893304

If the pro-internalists are seriously opposed to Contract Co (and anything
remotely similar like the reverse hybrid model) to the extent that they
discourage discussions on it, I would join Milton is asserting that the
functional separation model is completely unacceptable to most of us and
should not be discussed at all.

Alternatively, we could keep our ears open to all discussions and be
flexible to all variants; instead of taking such strong positions.

Regards,
Guru

On Tue, Apr 14, 2015 at 1:25 PM, Client Committee List for CWG <
cwg-client at icann.org> wrote:

>  Because we decided in Istanbul to go that way
>
>   From: Milton Mueller <mueller at syr.edu>
> Date: Tuesday 14 April 2015 09:50
> To: SIDN SIDN <maarten.simon at sidn.nl>, Matthew Shears <mshears at cdt.org>, "
> cwg-client at icann.org" <cwg-client at icann.org>, "cwg-stewardship at icann.org"
> <cwg-stewardship at icann.org>
> Subject: RE: [CWG-Stewardship] [client com] The Reverse Hybrid Model
>
>   Maarten:
>
> An internal solution is also unacceptable for a serious number of us. Why
> do we keep discussing it?
>
>
>
> *From:* cwg-stewardship-bounces at icann.org [
> mailto:cwg-stewardship-bounces at icann.org
> <cwg-stewardship-bounces at icann.org>] *On Behalf Of *Maarten Simon
> *Sent:* Tuesday, April 14, 2015 3:48 AM
> *To:* Matthew Shears; cwg-client at icann.org; cwg-stewardship at icann.org
> *Subject:* Re: [CWG-Stewardship] [client com] The Reverse Hybrid Model
>
>
>
> Hi Matthew,
>
>
>
> I do not think it to be useful to open this discussion as it in my opinion
> is the return of Contract co and it is also clear that the idea behind it
> (oversight in a separate entity) will not be acceptable for a serious
> number of us and we have enough other difficulties already on our plate.
>
>
>
> Best,
>
>
>
> Maarten
>
>
>
> *From: *Matthew Shears <mshears at cdt.org>
> *Date: *Tuesday 14 April 2015 09:32
> *To: *"cwg-client at icann.org" <cwg-client at icann.org>, "
> cwg-stewardship at icann.org" <cwg-stewardship at icann.org>
> *Subject: *Re: [CWG-Stewardship] [client com] The Reverse Hybrid Model
>
>
>
> Thanks Greg for putting together this variant.
>
> I don't see this as the return of the Contract Co model which was a
> completely separate structure - this variation of the legally separated
> affiliate model offers far greater predictability and certainty.
>
> I support further consideration of this variation by our legal advisers
> and also wanted to highlight two key points at the end of Greg's e-mail:
>
>
>
> *While structural separation of the IANA Functions operations does make a
> certain kind of future total separation easier (spinning off the current
> IANA Functions Operator within ICANN), this is really the less likely form
> of total separation.  The more likely form of total separation would be the
> selection of a new IANA Functions Operator, and that right would be
> structurally separated from ICANN.  More importantly from an operational
> perspective, the oversight and stewardship over the operations of the IANA
> Functions would be structurally separated from ICANN.  It would be firmly
> in the CSC, the PRT and the multistakeholder board.  This would be the
> primary job of the Affiliate, putting service accountability front and
> center.  Yet, it does not slight separability.*
>
> Matthew
>
> On 4/14/2015 8:59 AM, Client Committee List for CWG wrote:
>
>  Hi Greg (and Paul),
>
>
>
> Isn’t this this simply the return of contract co ? And didn’t we in
> Istanbul decide to leave this further aside a it was quit clear that there
> was not much of support for it?
>
>
>
> Maarten
>
>
>
> *From: *Client Committee List for CWG <cwg-client at icann.org>
> *Reply-To: *"cwg-client at icann.org" <cwg-client at icann.org>
> *Date: *Tuesday 14 April 2015 07:41
> *To: *"cwg-stewardship at icann.org" <cwg-stewardship at icann.org>, Client <
> cwg-client at icann.org>
> *Subject: *[client com] The Reverse Hybrid Model
>
>
>
> All,
>
> Paul Kane among others has suggested a variation on the current "internal"
> models.  Rather than quashing it, I thought it was proper to give it
> appropriate consideration.  As Paul is traveling, I thought I would put
> this together so that it could be given such consideration.
>
> For the sake of convenience, I'm calling it the "Reverse Hybrid Model."
>
> In this model, ICANN would still be the source of the right to perform the
> IANA Functions, as in the current internal model.  However, ICANN  would
> enter into an irrevocable agreement with the Affiliate for the IANA
> Functions.  Rather than having the right to perform the IANA Functions
> itself, the Affiliate would be given the right to contract for an entity to
> act as IANA Functions Operator.  (Thus, the Affiliate would be set up as a
> supervisor, not as an operator.)  Initially (but not perpetually), that
> subcontracted entity would be ICANN, the current IANA Functions Operator.
> However, the Affiliate would have the option, under the circumstances
> designated by the CWG, to separate the performance of the IANA Functions
> from ICANN (e.g., by issuing an RFP and enter into an agreement with a
> third party).
>
> As with the current internal models, ICANN Corporate would be the only
> member of the Affiliate. The multi-stakeholder community would (s)elect the
> independent Board of the Affiliate, which would have a limited (and
> defined) scope.
>
> It may appear that ICANN is granting a right to itself, through the
> Affiliate.  However, the key is that the Affiliate would have the oversight
> and stewardship responsibility over the IANA Functions, by exercising the
> rights and powers it has under the agreement with the IANA Functions
> Operator.  In other words, the Affiliate would be the contractor with
> oversight of ICANN-as-IANA Functions Operator, and would also have the
> right to exercise escalation rights, up to and including issuing an RFP and
> potentially a contract to a third party if the designated triggers
> warranted it.  The CSC and the PRT would be activities of the Affiliate,
> created by bylaws of the Affiliate, with a multistakeholder board providing
> oversight over the CSC and the PRT and ultimately over the IANA Functions
> Operator (initially, ICANN-as-IANA).
>
> Under the irrevocable agreement, ICANN would retain "ownership" of the
> IANA Function Operator rights but the Affiliate would (irrevocably) hold
> the right to subcontract for the performance of those services.  Although
> ICANN would be the only member, we would need to insure that its rights as
> the member to override the Board were as limited as possible.
>
>
> While this does not structurally separate the IANA Function operations
> from the rest of ICANN, it does separate the stewardship and the
> decision-making rights regarding the performance of the operations from
> ICANN.  As with the second option under the current hybrid proposal, there
> would be functional separation of the IANA Function operations from the
> rest of ICANN.
>
> While structural separation of the IANA Functions operations does make a
> certain kind of future total separation easier (spinning off the current
> IANA Functions Operator within ICANN), this is really the less likely form
> of total separation.  The more likely form of total separation would be the
> selection of a new IANA Functions Operator, and that right would be
> structurally separated from ICANN.
>
> More importantly from an operational perspective, the oversight and
> stewardship over the operations of the IANA Functions would be structurally
> separated from ICANN.  It would be firmly in the CSC, the PRT and the
> multistakeholder board.  This would be the primary job of the Affiliate,
> putting service accountability front and center.  Yet, it does not slight
> separability.
>
> I believe this proposal has sufficient merit to warrant due consideration.
>   One of the reasons we have engaged Sidley is so that we can understand
> the viability and desirability of various models and mechanisms (and so I
> and other don't have to "play lawyer").  In that spirit, I am forwarding
> this model to both the CCWG and the Client Committee so that this "Reverse
> Hybrid" model can be appropriately considered.
>
> Speak to you all in a few hours, as dawn rises over New York City.
>
>
>
> Greg
>
> [image: Image removed by sender.]
>
>
>
>
>
>
> Kind regards to both
>
> Best
>
> Paul
>
>
>
>
>  _______________________________________________
>
> Cwg-client mailing list
>
> Cwg-client at icann.orghttps://mm.icann.org/mailman/listinfo/cwg-client
>
>
>
>  --
>
> Matthew Shears
>
> Global Internet Policy and Human Rights
>
> Center for Democracy & Technology (CDT)
>
> + 44 (0)771 247 2987
>
>
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