[CWG-Stewardship] A liaison from the Board to CWG

[John Poole]

Dear Jonathan and Lise and Greg:
I very much support the idea of a Board liaison. I suggest consideration be
given, in choosing the liaison, of a member of ICANN senior staff who has
access not only to the Board, its Chair and the ICANN CEO, but also ICANN
legal staff and outside counsel (Jones Day). The CWG is now grappling with
very sensitive issues that could impact the Board, ICANN as a whole, and
its future legal liabilities post-Transition (see, for example, my earlier
post to Avri
http://mm.icann.org/pipermail/cwg-stewardship/2015-February/001879.html )

It is also for this reason, I have some concerns about the methodology
proposed going forward--"design teams" etc. My perspective, of course,
relates to the external Trust proposal with which I am most familiar ( as
amended
<http://mm.icann.org/pipermail/cwg-stewardship/2015-February/001774.html>
). I have no problem with Jonathan's most recent Proposed Design Team: IANA
Service Levels
<http://mm.icann.org/pipermail/cwg-stewardship/2015-February/001882.html>
however I would suggest that the "design team" first begin their work by
obtaining from the IANA department, the existing, in place, IANA Service
Levels metrics (from which many reports are presently published) and the
existing Complaint Process for IANA-related complaints. Then ask what is
missing, needs to be changed, or added?

At our last meeting it was said by Greg Shatan that the CWG proposal needed
to be "turn-key" (all the details included). Some disagreed then, I
disagree now. We need a proposal that sets forth a framework in sufficient
detail to meet the requirements of NTIA, expectations of ICG, and include
components deemed necessary by the Names community, in order to transition
NTIA out of its current role "in the coordination of the Internet’s domain
name system (DNS)." Once ICG has approved the CWG proposal, then additional
work can be done to make it "turn-key." If the ICG rejects the CWG initial
proposal, we will not have wasted time and money unnecessarily.

In the context of the external Trust model, the Trust instrument (document)
does not need to be drafted now--that would be an unnecessary waste of
resources (time and attorney fees)--it should be sufficient to indicate the
sources of its principles (NETmundial Statement
<http://netmundial.br/netmundial-multistakeholder-statement/>, Affirmation
of Commitments
<https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-en>)
and its purpose. The drafting of the Trust instrument itself, at the
appropriate time, would need to include not only the CWG attorney or
successor Counsel on behalf of the global multistakeholder community, but
also ICANN legal staff and ICANN's counsel Jones Day, as well as counsel
for the US government and perhaps others. I would assume, for example, that
the ICANN Board, as part of its fiduciary duties to the Corporation in
preparing for the IANA transition, already has been advised and received a
legal memorandum of potential new liabilities ICANN is facing once it no
longer has benefit of "government contractor immunity" and similar defenses
available to it by virtue of its NTIA contract. Terms of the Trust
instrument may provide ways to lessen or obviate those potential
liabilities, antitrust or otherwise.

Further, in view of some comments at ICANN 52, it would also be advisable
to include the makeup of its initial Board of Trustees, the methodology for
selection of successor Trustees, as well as the jurisdiction where the
Trust is to be registered. As to jurisdiction, we need input from the CWG
attorney. As to the Board of Trustees issues, I would recommend first
obtaining input and recommendations from ICANN's present Board Chairman and
CEO. Right now NTIA provides some support and non-binding advice and
counsel for ICANN's Board, *e.g.*, when governments or others complain
about ICANN policies or actions. Post-transition, the US government will be
just another member of GAC. It is possible, or even likely,
post-transition, ICANN, particularly its Board of Directors, will come
under increased pressures, not only from stakeholders within ICANN who are
jockeying for position and power, but also governments, particularly those
who really do not believe in multistakeholderism nor support the idea of a
free, open, stable and secure Internet and DNS. Therefore a Board of
Trustees supportive of ICANN and multistakeholderism is a critical,
somewhat sensitive issue.

Finally, Greg has posted [CWG-Stewardship] Proposed Design Team: IANA IPR,
including IANA Trademark and Domain Name
<http://mm.icann.org/pipermail/cwg-stewardship/2015-February/001869.html>
-- in the context of the external Trust it is proposed that the Trust for
the global multistakeholder community hold all such property--tangible and
intangible--"that the Trust property include the IP referenced by
the IETF proposal <
http://tools.ietf.org/html/draft-ietf-ianaplan-icg-response-09> ("iana.org"and
other associated marks), as well as the Internet "authoritative root
server" referenced in: http://www.gao.gov/new.items/og00033r.pdf, in
addition to all of the U.S. Government’s rights and duties included within
its “stewardship” role over the Internet and DNS, including the right to
issue the IANA Functions Contract, and its related IP--e.g., InterNIC, a
registered service mark of the U.S. Department of Commerce, licensed to the
Internet Corporation for Assigned Names and Numbers.

If, however, it is a Design Team's job is to eliminate one or more of the
four proposals pre-ICANN52 in the course of their work, then CWG leadership
needs to be clear about that now.

Best regards,
John Poole
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