[CWG-Stewardship] PTI board: form follows function

[Milton L Mueller]

Paul
Let me take issue with your comment, because I think our perspectives on PTI are basically in alignment but I think there is some misunderstanding of the role of its board. This post provides a better articulation of the function of PTI which I think provides some guidance as to what its board should be.

> ICANN Corporate Board control the funding available to PTI (Board and
> Staff) ..... PTI only gains its authority to act from ICANN Corporate
> Board (so ICANN Corporation's Board must reserve the right to
> fire/sack/spill members of the PTI Board) ....

No. The point of creating a separate legal entity is to put some distance between PTI and ICANN. If PTI is simply a passive entity and all its board members are directly under the control of ICANN Inc. there is no point in having a separate legal entity or a separate board. You get duplicate structures with none of the advantages (some autonomy, more focused accountability). (See below for more discussion of the need for legal separation). You also reinforce ICANN's ingrained mentality that it should have a monopoly on the performance of the IANA functions. This monopoly attitude is unhealthy and is probably the main reason why we need legal separation.

We can make this point clearer by contrasting the PTI affiliate option with complete divestiture of IANA functions operator (IFO).  In that case, IANA would be a small separate company completely independent of ICANN, and ICANN, the IETF and RIRs would merely contract with it and pay it to perform those services. IFO would be bound to implement ICANN policies by virtue of its contract. And if its performance was bad, you just have an RFP and see if anyone can do it better. IFO would be seen as a competitive, largely clerical service not as some great and powerful wizard of Oz-like magical capability.
 
Some people have expressed negative views about complete divestiture of IANA because of fears of "capture" or some such. But the more I think about it, the sillier these concerns seem. If IFO is a mere contractor there would be nothing to capture. The IFO's powers and duties would be defined completely by its contract with ICANN and it would have no latitude to do anything to the DNS root or assume any powers that ICANN (or the other IANA customers) didn’t want it to have. A contractor would never be able to make policy. it would be legally bound to edit the DNS root zone in ways that implement ICANN's policies. And an IFO that tried to capture anything would be quickly fired and replaced. 

This completely separate IFO would have its own board and management, but its services would be completely controlled by ICANN, RIRs, IETF via contract. That, in my opinion, is what we want. ICANN does not want, or need, to control the PTI board. It needs to get a service executed, efficiently and accurately. And it needs to focus on its own business, which is policy development and enforcement.

Now PTI is some kind of weird middle ground between a fully divested PTI (which is frankly what we should be doing) and an internal department (which imho would be a long term accountability disaster for Internet governance). We are trying to get some of the advantages of separability by creating an independent legal affiliate, without fully spinning off the IFO. 

The advantages of PTI are real: there will be a contract, the structure will already be separated in case we do need to switch providers, and we have put a significant dent into ICANN's proprietary interest in a monopoly on IFO provision.

Here's the key point:

If we are going to occupy that middle ground, it is imperative that PTI have an independent board or management, and that we have some layer of insulation between ICANN board and PTI management or board. (I say "management or board") because I am still weighing the California nonprofit and the Delaware LLC options). 

--MM