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

Tue Apr 14 08:56:05 UTC 2015

Hi Guru,

My personal feeling is that if we want to reach a solution here and within the limited time we still have, we need to follow the path we have chosen and not go back having discussions on the models that we have placed on the back burner. Of course we should go back to it if it becomes clear that the model we are working on does not fulfil the expectations we had. But until now I do not see that to be the case.

Best,

Maarten

From: Guru Acharya <gurcharya at gmail.com<mailto:gurcharya at gmail.com>>
Date: Tuesday 14 April 2015 10:29
To: "cwg-client at icann.org<mailto:cwg-client at icann.org>" <cwg-client at icann.org<mailto:cwg-client at icann.org>>
Cc: "cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>" <cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>>
Subject: Re: [CWG-Stewardship] [client com] The Reverse Hybrid Model

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<mailto:cwg-client at icann.org>> wrote:
Because we decided in Istanbul to go that way

From: Milton Mueller <mueller at syr.edu<mailto:mueller at syr.edu>>
Date: Tuesday 14 April 2015 09:50
To: SIDN SIDN <maarten.simon at sidn.nl<mailto:maarten.simon at sidn.nl>>, Matthew Shears <mshears at cdt.org<mailto:mshears at cdt.org>>, "cwg-client at icann.org<mailto:cwg-client at icann.org>" <cwg-client at icann.org<mailto:cwg-client at icann.org>>, "cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>" <cwg-stewardship at icann.org<mailto: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> [mailto: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<mailto:cwg-client at icann.org>; cwg-stewardship at icann.org<mailto: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<mailto:mshears at cdt.org>>
Date: Tuesday 14 April 2015 09:32
To: "cwg-client at icann.org<mailto:cwg-client at icann.org>" <cwg-client at icann.org<mailto:cwg-client at icann.org>>, "cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>" <cwg-stewardship at icann.org<mailto: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<mailto:cwg-client at icann.org>>
Reply-To: "cwg-client at icann.org<mailto:cwg-client at icann.org>" <cwg-client at icann.org<mailto:cwg-client at icann.org>>
Date: Tuesday 14 April 2015 07:41
To: "cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>" <cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>>, Client <cwg-client at icann.org<mailto: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 removed by sender.]

Kind regards to both

Best

Paul

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Matthew Shears

Global Internet Policy and Human Rights

Center for Democracy & Technology (CDT)

+ 44 (0)771 247 2987

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