[CWG-Stewardship] A few additional comments for … Two additional webinars on 6-7 May

Sun May 3 22:28:32 UTC 2015

Chuck,

> What is the board doing when it approves a ccTLD delegation if it is not making a decision?

I think it is just checking that its operators have followed due process and have documented the final decision.  The decision should have been made locally/nationally and it is not really for the ICANN Board to challenge or overrule a decision made in another country, just to check that the job has been done.  The IANA Functions Operator usually encourages contending parties come to a mutual agreement and the whole process is pretty delicate.

> PTI does not make any decision regarding whether policy has been followed except for technical policy

I’m still not really sure I know what you mean by technical policy.  I think the PTI assesses whether requests fit the requirements of RFC1591 and encourages local resolution of disputes.  In the case of continued disputes, the final decision would need to be according to local due process.  Elise might be able to explain how they currently assure themselves that the process has concluded.

The Board of the new entity would, I guess, want to ascertain that its staff is doing a good job – and that might include whether a delegation conforms to agreed policy and to local decisions (“C.2.9.2.c … the Contractor will consult with the interested and affected parties, as enumerated in Section C.1.3; relevant public authorities; and governments on any recommendation that is not within or consistent with an existing policy framework. In making its recommendations, the Contractor shall also take into account the relevant national frameworks and applicable laws of the jurisdiction that the TLD registry serves.”)  Due diligence would suggest a need to check that due process has been flowed within the IFO, and that the process and recommendation have been properly documented.

However, as I said to Milton last night, it had not occurred to me to put the check back to the ICANN Board.  I’m still not sure I understand why that would be a good idea.  In the case of a decision being made in the relevant jurisdiction, should verification of due process and documentation be able to do anything more than refer back and seek clarification?  I think not.  In which case, why would we separate an integral part of the SOW from the PTI when we are introducing legal separation?

Does that answer your questions?

Martin

From: Gomes, Chuck [mailto:cgomes at verisign.com]
Sent: 03 May 2015 15:54
To: Chris Disspain; Martin Boyle
Cc: Milton L Mueller; CW Lists; Grace Abuhamad; cwg-stewardship at icann.org
Subject: RE: [CWG-Stewardship] A few additional comments for … Two additional webinars on 6-7 May

What is the board doing when it approves a ccTLD delegation if it is not making a decision?

It seems to me that we are in agreement that PTI does not make any decision regarding whether policy has been followed except for technical policy.  Is that correct?

Chuck

From: Chris Disspain [mailto:ceo at auda.org.au]
Sent: Saturday, May 02, 2015 9:41 PM
To: Martin Boyle
Cc: Gomes, Chuck; Milton L Mueller; CW Lists; Grace Abuhamad; cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] A few additional comments for … Two additional webinars on 6-7 May

Matin + 1.

Cheers,

Chris

On 3 May 2015, at 08:16 , Martin Boyle <Martin.Boyle at nominet.org.uk<mailto:Martin.Boyle at nominet.org.uk>> wrote:

Chuck, comments in line below.

From: Gomes, Chuck [mailto:cgomes at verisign.com]
Sent: 01 May 2015 14:37
To: Martin Boyle; Milton L Mueller; 'CW Lists'; 'Grace Abuhamad'
Cc: 'cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>'
Subject: RE: [CWG-Stewardship] A few additional comments for … Two additional webinars on 6-7 May

Martin/Milton,

Please note my understandings below.

Chuck

From: Martin Boyle [mailto:Martin.Boyle at nominet.org.uk]
Sent: Friday, May 01, 2015 6:44 AM
To: Milton L Mueller; Gomes, Chuck; 'CW Lists'; 'Grace Abuhamad'
Cc: 'cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>'
Subject: RE: [CWG-Stewardship] A few additional comments for … Two additional webinars on 6-7 May

Obviously then I’m misunderstanding something Milton.

> The IANA Functions operator (IFO) should simply take ICANN’s instructions.
[Chuck Gomes] I think this is mostly accurate but I qualify that below.

Err, no!  The IANA functions operator should base its decisions on agreed policy.  In ccTLD cases, rfc1591 is now supplemented (informed) by the work of the Framework of Interpretation Working Group.  It also has advice from the GAC 2005 Principles.  ICANN (as the Board) does not have a role in telling the IANA functions operator what to do in the case of ccTLD delegations or revocations.
[Chuck Gomes] With regard to technical policy (i.e., Internet Standards), my understanding is that the IFO would check for compliance and does not need specific direction from ICANN in that regard so I think Martin is correct that the IFO doesn’t rely on ICANN’s instructions for its technical checks.  But with regard to ccTLD delegations or revocations, I believe that a Board approval is required.  I do not believe that the IFO is involved in any interpretation of ICANN policy; rather, ICANN staff confirms that ICANN policy has been followed.  I know In the case of gTLDs, no Board action is needed for a delegation of a gTLD but ICANN staff confirms that GNSO policy has been followed before it ever gets to IANA involvement; it is not the IFO responsibility to do that.

MB:  I believe – and Chris Disspain has explained the role to the ccNSO and to others – the Board sees its role on delegations and revocations of ccTLDs as assessing a traffic-light report from the IANA functions operator staff:  it is essentially a process and documentation check, although it could be used to approve a decision where strict adherence to policy (eg on engagement with interested parties in countries where this sort of approach is not carried out).  In my mind it is not an instruction and the role could be done by a PTI Board which has responsibility for the provision of the IANA functions operator role.

This is fundamental – clear separation of policy and the IANA functions operator should not be undermined by ICANN giving instructions.  And if I remember correctly this principle is clearly embodied in the SOW.  And ICANN does not have the power to overrule national due processes.
[Chuck Gomes] Agreed on the principle of separation policy development and the IFO and I think what I described in my previous comments above demonstrates clear separation but I am pretty sure that ICANN staff must give confirmation (instructions) that ICANN policy (in contrast to technical policy) has been satisfied regarding delegations or revocations.  And I do not think that violates the principle of separating policy development from the IFO.  I of course also agree that “ICANN does not have the power to overrule national due processes” but I don’t think that means that the IFO would be involved in interpreting national due process; isn’t that ICANN’s task?

MB:  For ccTLDs, I do not see where this role is performed.  I’d also be alarmed at other ccTLDs (and hence non-nationals) having a say over a ccTLD.

> I don’t think the IFO should have discretion to make those decisions, it should simply edit the zone file as directed.
[Chuck Gomes] I think this is a correct statement as I have tried to describe above.

MB:  The IANA functions operator’s role is surely (again for ccTLDs) to ascertain that the decision for change has properly been made (and all other decisions can be automated anyway.  But the disagreement is who does have the discretion to make those decisions.

The issue – and hence the complexity – is about who actually has the right to make the decisions and direct the IANA functions operator.  The role of the IANA functions operator is to identify that a decision is appropriate – and the SOW gives some guidance to that, as does the work of the FOIWG.  But it is absolutely not ICANN’s decision.
[Chuck Gomes] From a technical point of view I agree but not beyond that.  We would be getting into a very different situation if the IFO has to make decisions regarding whether ICANN policy or national due process is followed.  That would mean that the IANA functions are much more than technical and clerical and it would require very different skills sets.

MB:  the IANA functions operator (and the current ICANN Board) role is not to make the decision, but to verify that the decision is appropriate and correctly made.

Your failure to understand this is perhaps why you feel quite casual about re-bidding the IANA functions operation and I do not.

The ccTLD community has seen the friction caused by ICANN imposing arbitrary conditions or questioning legitimate national decisions.  (This history of this high-handed approach was one of the motivations for the 2005 GAC Principles.)  I do not think that I’m alone in wanting to avoid as much as possible having to start the learning process again with a new contractor.
[Chuck Gomes] I definitely do not think that ICANN should impose arbitrary conditions or question legitimate national decisions but I do not believe that that means that the IFO should make those decisions. If we have disagreement on this, then I think we need to have some serious discussions so that we are all on the same page.

MB:  I am not arguing that the IANA functions operator makes the decisions.  It is that the ICANN Board does not make decisions and give instructions.

Martin

From: Milton L Mueller [mailto:mueller at syr.edu]
Sent: 30 April 2015 18:48
To: Martin Boyle; 'Gomes, Chuck'; 'CW Lists'; 'Grace Abuhamad'
Cc: 'cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>'
Subject: RE: [CWG-Stewardship] A few additional comments for … Two additional webinars on 6-7 May

Thanks for helping to highlight where you and I diverge, Milton.  I’d take changing the operator a lot more seriously than you!

MM: I don’t think we actually do diverge on this issue, Martin. See below.

So whoever takes the IANA functions operator role will need to be aware of the back story and be able to command trust.  It is not straight-forward and while I am sure there’s a long list of people who would be able to update names, protocol parameters and the gTLD part of the TLD registries, I still struggle to think of who might be able to do the ccTLD piece and would also be generally trusted.  (Clue – it is not a TLD or a consortium of TLDs.)

MM: The IANA Functions operator (IFO) should simply take ICANN’s instructions. One benefit of a separated IFO would be the ability to more clearly separate those sensitive policy decisions that should really be made by ICANN, and those implementations that should be done by the IFO. I agree with you that ccTLD redelegations can be more sensitive than gTLD delegations, I don’t think the IFO should have discretion to make those decisions, it should simply edit the zone file as directed. Do you disagree?

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