<div dir="ltr"><div>Alan:<br><br></div>Thank you for your email. My specific thoughts are inline below. I apologize for the length, but I have tried to be as comprehensive as possible within a reasonable timeframe.<br><br><div class="gmail_extra"><br><div class="gmail_quote">On Sat, Nov 29, 2014 at 12:23 AM, Alan Greenberg <span dir="ltr"><<a href="mailto:alan.greenberg@mcgill.ca" target="_blank">alan.greenberg@mcgill.ca</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex">
<div>
As I have mentioned during the F2F meeting in Frankfurt and on the most
recent teleconference, I have significant problems with the proposal
currently on the table. I am taking this opportunity to present my
concerns in somewhat more detail, and I will also present what I believe
to be a viable alternative. The ideas presented are my own, but I do know
that they are largely shared by my At-Large colleagues and by some others
in the community.<br><br>
I am also quite aware that my alternative options are likely to be
vehemently opposed by some.<br><br>
I should also add that there are aspects of the current draft CWG
proposal that I strongly support. The Independent Appeals Panel is
perhaps the most important one.<br><br>
<font color="#0000FF" size="5"><b>Overview<br><br>
</b></font>Many of my concerns are due to the large number of
"details" that are, as yet, unspecified. Perhaps some of my
concerns will be negated once there are sufficient answers, but I have
the nagging feeling that for many, there will be no viable answer. </div></blockquote><div><br></div><div><font color="#0000ff">GS: I do not share your pessimism. Indeed, I think that I have offered viable and sufficient answers in this email, and others have done so in their responses as well.</font></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>This
message will necessarily be long - my apologies for that.<br><br>
<font color="#0000FF" size="5"><b>Contract Co.<br><br>
</b></font>Many of the issues surround the "entity" (as it was
referred to in Frankfurt). The draft somewhat glibly says that it will
only sign the contract. But it seems to be outsourcing much of its
responsibility to the Multistakeholder Periodic Review Team (PRT), and
that seems problematic. </div></blockquote><div><br></div><div><font color="#0000ff">GS: I think this is more accurately characterized as delegating.</font></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>Perhaps the intent is not that all of these
things go to the PRT, but there does not seem to be anywhere else for the
functions to go. Among the tasks that it has outsourced are consultation
regarding the contents of future RFPs, RFP issuance, RFP evaluation,
contract negotiation and contract enforcement. What it cannot outsource
is addressing legal issues such as being sued by a bidder who failed for
win the contract and other such possibilities. </div></blockquote><div><br></div><div><font color="#0000ff">GS: This is fairly simple to resolve. The winning bidder must be required to indemnify, defend and hold harmless the PRT. </font></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>Whether it is possible to
have such an empty company do all this remains to be demonstrated.</div></blockquote><div><br></div><div><font color="#0000ff">GS: Contract Co. will need to have just enough substance to accomplish these acts, all of which are well within the bounds of corporate authority. I see no reason why Contract Co. could not do all these things, while remaining a lightweight, constrained entity.</font></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div> I will
deal with problems with this outsourcing under the PRT.<br><br>
The jurisdiction under which the company is registered has been the
subject of some discussion. Clearly there are those who feel that under
no conditions can it be the US. At the same time, there are some
indications (such as terms in the Kelly bill) that imply that the US
Government may not be willing to accept anything other than the US. Note
that I understand that the Kelly bill itself may wither and die, but to
quote Milton Meuller, "We should also pay attention to it because
the bill provides a very good benchmark for preparing for the kind of
questions that the NTIA is likely to be asked after they get a complete
proposal from the ICG and begin to implement it. The Kelly bill can be
considered a list of the concerns that US-based interests are going to be
using to assess the final proposal. The GAO Report is equally important
in this regard. Ignore them at your peril." (E-mail to the
CWG-Stewardship list on 23 Nov 2014)<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: There's no getting around the fact that jurisdiction will be perceived as an issue, and that it will need to be resolved. But that is true of any solution other than an "internal-to-ICANN" solution, which would keep everything in the US (unless, of course, you propose to move ICANN, which I am confident is out of our scope. In any event, I don't think that jurisdiction is as big an issue as some would like to think it is. But that's just me. Regardless, I don't think that jurisdiction can be raised in the abstract. The specific concerns raised by specific jurisdictions need to be explicitly stated. </font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
Without details of exactly how this corporation will exist, it is
impossible to assure oneself that it cannot be captured or controlled by
some entity or government(s). </div></blockquote><div><br></div><div><font color="#0000ff">GS: Obviously, we all need to work on "connecting the dots" (i.e., filling in details). As I've mentioned before, the articles of incorporation and bylaws can be set up so that Contract Co. is essentially compelled to accept the decisions of the PRT with virtually no discretion. The particular actions that can and can't be taken by the directors can be carefully limited and circumscribed. This is quite commonly done when setting up corporations for specific purposes. In some cases, it is necessary that a company be "bankruptcy remote" (also sometimes referred to as "bankruptcy proof"). If so, there are a series of prohibitions, covenants and approvals baked into the bylaws that prevent the company from putting itself in the position to be declared bankrupt. There is also a prohibition against the directors changing the bylaws to try to defeat these prohibitions, covenants and approvals. Similarly, corporations are set up for specific purposes within the structure of a private equity fund or hedge fund; these corporations are also highly constrained in their actions. This is all well trod ground. I don't see how such a corporation could be "captured" or controlled by another entity or a government. However, without details of exactly how you expect this corporation to be captured, it is impossible to see whether this is a credible threat at all, even before putting in constraining and limiting controls. Without details, "capture" -- like "jurisdiction" -- is just a word being used as a bogeyman or a rallying cry, stirring emotion but conveying no useful information.</font></div><div><br></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>Running IANA will be a treasured target by
some countries and we do not know what lengths they would go to capture
the contract. NTIA had the strength of the US (and its battleships and
such) behind it. </div></blockquote><div><br></div><div><font color="#0000ff">GS: Until this point, I had thought you were using the term "capture" metaphorically. Now I fear that you are using it literally. I do not think that Contract Co. needs to raise a standing army or build a fleet of battleships. Indeed, I can't think of an instance where a corporation has resorted to physical force to avoid "capture." I do recognize that there are certain countries in the world where companies have been "de-privatized." We should avoid those. More practically, it should be set forth as a requirement that any respondent to an RFP must not be a government or intergovernmental body, just as NTIA required, and have protections in place to assure Contract Co./PRT that it cannot later be captured.</font></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>Contract Co. will not.<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: It will not need to (especially the battleships part). It will be set up to eliminate opportunities for capture, and it will have the protection of the rule of law. </font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
There has been no discussion about how this entity, or any part of the
overall proposal, is funded. More on this later.<br><br>
<font color="#0000FF" size="5"><b>Multistakeholder Periodic Review Team
(PRT)<br><br>
</b></font>The PRT is effectively the operational arm of Contract Co. It
is the entity that makes decision for Contract Co., presumably including
those related to the RFP, contract negotiations, contract enforcement and
much more. But by its very name, it is Periodic. It does not exist at all
times and there are some in the community that have said it should be
re-constituted afresh every time it is needed (perhaps like the Phoenix
born from the ashes of its predecessor). I fail to understand to how it
can take action on problems if it is not an ongoing entity.<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: I think that it is fairly clear that the PRT has to be in a state of readiness in order to deal with "non-periodic" events. On the other hand, we don't want the PRT to feel the need to justify its existence or fill monthly meeting agendas or expand its scope. These can be controlled by the PRT's organizing documents (perhaps a charter).</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
The description says that it is a "body" with representatives
selected by the relevant bodies. Accepting that "relevant" is
to be decided later, it is unclear under whose auspices this body is
convened, and how we can ensure that it remains free from capture or
malformation. It was suggested in Frankfurt that this body could be akin
to (or even identical to) the IANA-CWG, but given that the entire concept
of this elaborate infrastructure is to allow ICANN to be completely
excluded from the IANA management process, presumably because it has
ceased to carry out this function as well as all parties claim it is now
doing, what makes us think that ICANN would take responsibility for this,
or more to the point, could be trusted to do it properly?<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: In terms of capture or malformation, I think the answer lies first in the basic precepts of "multistakeholderism," which I am a strong believer in, even when I disagree with a particular result. Broadly speaking, by constituting the team from a diverse set of stakeholder groups and organizations, which formally select the members, you have de facto checks and balances, as the members and their organizations have different interests and are keeping a wary eye on the organization to see if is going adrift or being pulled out of alignment. The composition of the group must also be calibrated to avoid giving too much power to anyone stakeholder group or set of naturally aligned stakeholder groups. Finally, you have to give the organizations the ability to pull their representative if he/she goes "rogue" (to borrow one of your suggestions for the ICANN Board). In order to capture such a group, you would need to capture enough members to achieve consensus (i.e., a significant majority, to say the least), which in turn would mean capturing a series of diverse, disparate and sometimes opposed groups and organizations. I think this might have happened in Star Wars -- but even in fiction, it took three movies for Senator Palpatine to become Emperor Palpatine, as well as acts of war to suspend the multistakeholder model of the Galactic Senate. I don't see this happening in reality, unless the Dark Lords of the Sith are among us. Seriously, though, I think we have to have some faith in the multistakeholder model, not just for the PRT, but for the future of Internet Governance generally.</font></div><div><font color="#0000ff"><br></font></div><div><font color="#0000ff">As for whether the PRT could be akin to the CWG -- that does not imply that the PRT would be under the ICANN umbrella. I think the point was more one of composition. However, now that you raise the point, this might be a valid alternative. I think it is important to distinguish between "ICANN the corporation" and "ICANN the community". An ICANN multistakeholder group is not the same as ICANN the corporation, which what I think you refer to when you say ICANN above. So, while ICANN the corporation may not be "trusted to do it properly," I have a much higher degree of confidence that a multistakeholder group will, whether or not it takes some shelter under the ICANN umbrella. That does not mean these are the only alternatives. The PRT could exist without being aligned with any other organization, it could be a committee under the auspices of Contract Co., or it could even become aligned with another existing organization (e.g., ISOC).</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
So how this body, which is the critical keystone
[<a href="http://en.wikipedia.org/wiki/Keystone_(architecture" target="_blank">
http://en.wikipedia.org/wiki/Keystone_(architecture</a>)] on which this
entire superstructure depends, constituted, and funded. And how does one
ensure that it is not corrupted, or captured? </div></blockquote><div><br></div><div><font color="#0000ff">GS: I believe I've answered this above. Any further details on corruption or capture scenarios would be appreciated (but leave out the battleships, please).</font></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>Or sued. A body as large as
it will have to be will require infrastructure such as a secretariat -
how do we ensure that IT is not subverted (just look at all the effort
that has gone into ensuring an independent ICG secretariat)? </div></blockquote><div><br></div><div>GS: I have my own opinions about the necessity of the effort that the ICG took to ensure an independent secretariat (but maybe they had the time to turn to such efforts). Nonetheless, it may provide some useful lessons on doing so, and such things are always much easier the second time around.</div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>And without
a corporate backing of the PRT, its members would be personally liable in
the case of a lawsuit. Who would want to serve on such a group? Moreover,
in an environment where the PRT is taking very significant decisions,
both financial offers and personal threats would be an effective method
of capture (and presumably this is all volunteer work, or at most a
modest stipend).<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: Assuming arguendo that PRT is not aligned with any other body, Contract Co. could purchase insurance to cover the PRT members, naming them as additional insureds. By the way, has anyone checked how we are protected from personal liability and the possibility of being sued? Does ICANN carry "multistakeholder insurance?" I would also be curious to know whether anyone in this group has been subject to financial offers or personal threats in order to capture them. I, for one, have not. A funny thing, too -- in those instances where capture occurs (say, soccer referees or baseball teams) its usually pretty obvious when they go from free will to puppetry. Now, when you get to spycraft and other dark arts, it may be more difficult, but I still think we are straying into the realm of fiction here. </font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
Surely, the PRT, which is implicitly all powerful, would need a new
oversight mechanism over it! And who oversees THAT oversight
body?<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: Surely not. First, the PRT is not all powerful, implicitly or otherwise. Its members must answer to their constituents. Similarly, the oversight mechanism over the PRT is the diverse collection of stakeholder groups and communities, not a body. And no further body is needed after that. The threat of "infinite oversight" is a myth.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
<font color="#0000FF" size="5"><b>Customer Standing Panel (CSC)<br><br>
</b></font>It is unclear exactly what this body monitors. If it is JUST
service levels committed to by IANA, the composition may be ok. But if it
is also responsible for ensuring that IANA is following policy, then the
composition MUST reflect the multi-stakeholder body or bodies that
created such policy. </div></blockquote><div><br></div><div><font color="#0000ff">GS: I personally agree that there should be multistakeholder representation of some sort on the CSC. But this is still an open issue.</font></div><div><font color="#0000ff"> </font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>You cannot presume that the customers, who may have
been vehemently opposed to any specific policy, will report that such a
policy is not being policy. If the CSC is NOT monitoring adherence to
policy, then who is? It does not seem to be covered in the proposal.
</div></blockquote><div><br></div><div><font color="#0000ff">GS: The NTIA currently monitors policy adherence to an extent, at least with regard to delegations and redelelegations. The Del/Redel report must describe how the del/redel follows existing policy. While we haven't nailed this down yet, I believe that receiving and reviewing Del/Redel reports goes to the CSC in the first instance, and can be escalated to the PRT if need be. As to whether the CSC will report that policy is not being followed -- if it doesn't, it risks destroying its own legitimacy. That's a pretty big risk to take.</font></div><div><font color="#0000ff"> </font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>During e-mail discussions, someone said it was the job of the (for the
gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do
so, nor would it have any standing to complain to whoever it is that
would attempt enforcement (the PRT??).<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: The GNSO Council has in fact raised policy concerns regarding various gTLD implementations and proposals. I believe this is well within its mandate, and it is worth considering whether the GNSO Council should have standing to raise these concerns to the PRT and/or the IAP.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
There is reference to Liaison from ACs and SOs on the CSC. In the ICANN
context, a Liaison has no power other than that of persuasion. They have
no power to act if they are in disagreement with the majority of the full
members.<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: In that case, it may be more appropriate for these to be members of, rather than liaisons to, the CSC. However, I would note that liaisons do have the power of persuasion, which you used quite effectively on the GNSO Council. Finally, I would doubt that the CSC would be able to act by simple majority,</font> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
<font color="#0000FF" size="5"><b>Cost<br><br>
</b></font>Cost has been mentioned briefly above, but it is a significant
issue. Aside from the costs of the infrastructure we are discussing here,
there is the cost of IANA. Currently this is funded by ICANN. If ICANN
were to be taken out of the picture (and the possibility of doing that is
the ONLY reason for building all of this), where does the funding come
from? From ICANN, out of the goodness of its heart, despite no longer
having ANY control over how much money is demanded or how it is spent? By
the gTLD registries, who have said they would likely fund THEIR part of
the costs, but not the entire thing. By the ccTLDs who have clearly said
we should not depend on them (with a few exceptions)?<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: I agree that funding is an aspect that needs more attention. But the fact that we haven't yet turned to this in detail does not disqualify the proposal in any way. Contract Co. is granting ICANN a valuable right -- the right to perform a valuable service. If ICANN paid a fee for that right, it would not be out of the goodness of its heart. There's no such thing as a free lunch. I'm confident that we will find a way to deal with this, given the value that is inherent in the IANA Functions. </font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
<font color="#0000FF" size="5"><b>Acceptability<br><br>
</b></font>The last time I heard Larry Strickling talk about the
stewardship transition, he said it would only take place if sufficient
controls were put in place to address ICANN messing up (i.e., in the
extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of
the IANA stewardship - why else would we care about ICANN accountability
if ICANN were not involved. From that, my take is they envision the IANA
responsibility being transferred to ICANN. The Kelly bill clearly
presumes this as well - why else would it be attempting to put so many
constraints on ICANN?<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: I disagree with this assumption entirely as I said to Holly earlier. The NTIA is looking to transition stewardship of the IANA Function to the global multistakeholder community, not to ICANN .</font></div><div><br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>
It is not at all clear that a proposal such as one that the CWG has put
in this draft would be acceptable to the US government.<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: My crystal ball is at least as cloudy as yours, but I predict that a proposal that failed to transition NTIA's role to the global multistakeholder community, and instead transferred it directly into the hands of ICANN, would be far more likely to be unacceptable to the US government. This could be the "internal to ICANN" concept's fatal flaw. </font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
It will certainly not be a favoured proposal from the point of view of
the ICANN Board (who may not have a direct say in this but cannot be
totally ignored either).<br></div></blockquote><div><font color="#0000ff"><br></font></div><div><font color="#0000ff">GS: This may be true, but we would be betraying our mandate and our constituents if we decided that our aim was to please the Board. In any event, I have faith (perhaps more than you) that the Board isn't going to try to stop a disfavored proposal. That would raise quite a ruckus, if ICANN the corporation were to turn on ICANN the community. Remember, this is not just one SO or AC, which the Board may choose to ignore at some peril. We are the massed army of stakeholders (unless, of course, we are riven by division, which would be far more than unfortunate -- as Milton notes elsewhere, the vultures are circling, and if the Board has indigestion, that is the least of our worries.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
<font color="#0000FF" size="5"><b>Integratability<br><br>
</b></font>The ICG will be tasked with integrating the CWG proposal with
that of the RIRs and the IETF. Although this is clearly their job and not
ours, I have always believed that one needs to look ahead to ensure that
there are no impassable roadblocks ahead.<br><br>
We do not definitively know what those proposals will be, but indications
are emerging. Both bodies seem to be happy with how ICANN is managing
IANA, but both feel that in the event of any untoward action, they could
move the responsibility associated with their areas somewhere else. Since
in both cases, it is the same body that sets the policy that would judge
it, no great complexity is involved. In ICANN's case, since the bodies
that set policy in the names space are (to a large extent) an integral
part of ICANN, they cannot take action against their "parent"
(so to speak). Thus this cumbersome alternative.<br><br>
Integrating these two approaches may be difficult.<br></div></blockquote><div><font color="#0000ff"><br></font></div><div><font color="#0000ff">GS: It might be difficult; it might not. As you note, names is differently situated than the other two areas. Therefore, a one size fits all approach was always unlikely. By creating Contract Co. and the PRT, we are actually closer to the model of the other two areas, which should make integration easier, not harder.</font> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
<font color="#0000FF" size="5"><b>Lost Opportunity<br><br>
</b></font>Part of the IANA Stewardship Transition is to put in place
suitable ICANN accountability and governance changes so as to ensure the
continuity of the IANA function. <br><br>
If all of the questions posed here, and the ones raised by others are
addressed, we would end up moving from a situation where an entity (the
NTIA of the US government) awards the IANA contract. The contract is
currently held by ICANN but in theory at some future date, it could be
awarded to some other organization, removing ICANN from any operational
connection to ICANN.<br><br>
The new situation would be where Contract Co. awards the IANA contract.
The contract will initially be held by ICANN but in theory at some future
date, it could be awarded to some other organization, removing ICANN from
any operational connection to ICANN.<br><br>
Notice the parallel wording. ICANN really has no motivation to change to
effect this change. And in all likelihood any change associated with this
transition will be minimal.<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: I think you probably meant to say IANA at the end of each of those paragraphs, rather than ICANN. In any event, I understand the concept of leverage here. I think we exercise that leverage along the lines that the two CWG's work is "interrelated and interdependent" and that Stream 1 accountability has to be resolved before there is a transition. We can't try to reform all of ICANN ourselves from the platforrm and mandate of transitioning NTIA stewardship. That would be massive mission creep. There is a careful balance here in using the IANA Transition to ensure that Enhanced ICANN Accountability is not just an empty phrase, but that balance is lost if we put forth a plan that does not really transition NTIA's roles and that reaches far beyond our mandate in order to enact major reforms. We cannot do the job of the ICG or the Accountability CWG, but we do depend on them both to do their jobs right.</font></div><div><font color="#0000ff"><br></font></div><div><font color="#0000ff">Furthermore, I don't think Contract Co. is the status quo. The NTIA is controlled by the US Government. Contract Co. is controlled by the multistakeholder community. What makes you think we will sit on our collective hands? Also, I anticipate that the contract will have more "teeth" in it to enforce accountability (including termination for breach, which is absent from the current NTIA agreement except in extremely narrow circumstances).</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
If we go down the path of the current draft CWG proposal, I believe that
a major opportunity will have been lost to reform ICANN.<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: I disagree for the reasons stated above. We in this CWG may have lost that major opportunity, but the ICANN community has not lost that opportunity. It's right next door in the Accountability CWG. What we have not lost is the ability to use our leverage judiciously to support the "interrelated and interdependent efforts" of the CWG Accountability. And they way we can lose that is to be overtaken by internal divisions, failing to meet our timeline, and squandering our legitimacy. Frankly, I don't think that is what's happening here -- there's a reason that ICANN consensus is "rough" -- some divergence is expected, but the show must go on. Only where this true divergence (i.e., no view predominates) or strong opposition.does the show not go on. While I agree with Chuck that a formal consensus call is premature, I think that in the fullness of time and through our continuing good faith efforts, we will get there in good shape.</font> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
<font color="#0000FF" size="5"><b>Alternative<br><br>
</b></font>Simply criticizing the current CWG draft proposal is not
particularly useful without alternatives. </div></blockquote><div><br></div><div><font color="#0000ff">GS: Alternatives can be helpful. So can suggestions for improvement. These can come from adapting certain aspects of alternatives, as has already happened. It can also happen when people who look for problems also look for solutions.</font></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>My alternative is certain to
not please some of the parties in this discussion, but I believe that it
is both possible and viable.<br><br>
All of the complexity of the CWG draft proposal is there to cover the
eventuality that ICANN suddenly or gracefully stops performing the IANA
function to the satisfaction of the community. </div></blockquote><div><br></div><div><font color="#0000ff">GS: I disagree, and I think this mischaracterizes both the proposal and the work that led to it. The framework of the CWG draft proposal is there first to replace the NTIA's roles. As you will recall, we spent a couple of hours defining the various roles that NTIA currently performs in relation to IANA. The CWG structure was then fit to those roles. Dealing with non-performance is built into the framework as well, but it is hardly the sole reason for it.</font></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div>That was indeed the
situation a number of years ago, and ICANN took effective action to
rectify the problems (that is, the NTI did not have to yank the contract
to fix the problems). At the moment all parties seem to agree that there
are no significant outstanding major problems, certainly none that could
justify a change in the status quo. But there is a recurrent fear of
"what if". What if ICANN had the IANA responsibility in
perpetuity and stopped caring. Or had a Board that deliberately and
without community support took action or inaction to harm how the IANA
functions are carried out (the "rogue Board scenario).<br><br>
These worst case alternatives are indeed possible. And since under the
current ICANN Bylaws, the Board is effectively sovereign, little could be
done short of changing the Board over a period of 3+ years.<br><br>
I suggest that there are ways to alter ICANN's Bylaws to allow the
effective control of an out-of-control Board. These mechanisms will not
be particularly appreciated by the ICANN Board, but I believe that such
measures (or something similar) would be adopted if that is what is
required to be granted IANA.<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: I think that you have taken your boat of the CWG's waters with this statement. Accountability is part of our responsibility, but it is accountability relating to the IANA Functions. Using that responsibility to try to re-make ICANN from our group is a massive overreach. We (individually) can be part of that grander effort by participating in the CWG on Accountability, and as a group, by maintaining that Stream 1 must be resolved before the transition takes place.</font> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex"><div><br>
There are a number of components that I will describe. They are not
necessarily a complete or even the correct set. Putting in place a
complete set of cohesive recommendations is what the Accountability CCWG
is being convened for. But the existence of the following as a starting
point, I believe, demonstrates that there IS a way to proceed
forward.<br><br>
-<u></u> <u></u>ACs and SOs
must be given the ability to recall their sitting Board member. There
will be no need to await the end of the current 3-year term.<br>
-<u></u> <u></u>Certain classes
of decision regarding IANA can only be made with (for an example) a
supermajority (2/3) of the Board's maximum Bylaw-mandated membership
approving the decision. Without the bulk of the AC/SO Board members,
there will not be a critical mass of Board members to take such a
decision.<br>
-<u></u> <u></u>Certain classes
of decision regarding IANA may only be made after notification period and
public comment. This would allow the ACs and SOs sufficient time to act
to recall their Board members<br>
-<u></u> <u></u>It is possible
that the composition of the Board might need to be slightly altered to
ensure that a recall of most but not all AC/SO Board members would be
effective in halting action. Or a higher threshold than supermajority
might be needed.<br>
-<u></u> <u></u>Bylaws
regarding GAC advice related to IANA might need to somewhat altered to
compensate for the GAC not having sitting Board members.<br>
-<u></u> <u></u>Similarly,
non-affiliated ccTLDs would need to be worked into the equation.<br>
-<u></u> <u></u>If allowed
under California law, the Bylaws could be require that under certain
circumstances, a Board decision could be appealed to an external body
(similar to the proposal's Independent Appeal for IANA decisions) and
that the decision would be binding and enforceable in courts.<br></div></blockquote><div><br></div><div><font color="#0000ff">GS: I think your second and third suggestions might have a place in the work of our group, and perhaps the one about GAC advice related to IANA (but the motivation for that suggestion is still fuzzy to me). The rest of these fall outside our mandate. If we were watching an ICANN Board Committee with our mandate use that mandate to remake broad swaths of ICANN governance with no direct relationship to IANA, the multistakeholder howls would be deafening.</font></div><div><font color="#0000ff"><br></font></div><div><font color="#0000ff">What I found most disappointing when I reached the end of this email for the first time, was that there is really no proposal here. As noted above, we noted several roles (we called them "functions" in Frankfurt, but I think that leads to confusion with the IANA Functions) that the NTIA plays and that need to be replaced in some form (not necessarily on an exact parallel basis, but they need to be dealt with and their raisons d'etre need to be considered and carried through to any proposal). For convenience, I will repeat our list of NTIA roles below:</font></div><div><font color="#0000ff"><br></font></div><div><p class="MsoNormal"><b><span style="font-family:Cambria,serif">#1 – APPROVAL FUNCTION OF CHANGES TO THE ROOT
ZONE </span></b></p>
<p class="MsoNormal"><b><span style="font-family:Cambria,serif">#2 - PERFORMANCE REVIEW FUNCTION </span></b></p>
<p class="MsoNormal">Periodic Review</p>
<p class="MsoNormal">Transactional Performance review (SLAs)</p>
<p class="MsoNormal">Perform (technical) audits and customer surveys</p>
<p class="MsoNormal"><b><span style="font-family:Cambria,serif">#3 - CONTRACTING FUNCTION (ability to enter
into a contract)</span></b></p>
<p class="MsoNormal">Determining the substance of the contract</p>
<p class="MsoNormal">Award / renewal of contract</p>
<p class="MsoNormal">Understand what stakeholder concerns are</p>
<p class="MsoNormal">Issuance of RFPs</p>
<p class="MsoNormal">Contracting</p>
<p class="MsoNormal">Ability to seek public comments</p>
<p class="MsoNormal"><b><span style="font-family:Cambria,serif">#4 – ENFORCEMENT OF THE CONTRACT FUNCTION (incl.
renewal/rebidding)</span></b></p>
<p class="MsoNormal">Termination of contract;</p>
<p class="MsoNormal">Ability to enforce</p>
<p class="MsoNormal">Ability to seek public comments</p>
<p class="MsoNormal">Ability to determine whether contract should be terminated,
including hearing of complaints</p>
<p class="MsoNormal">Listen to community and act on its behalf</p></div><div><br></div><div><font color="#0000ff">Regrettably, I think your Alternative skips over all of this, perhaps due to eagerness to fix ICANN (which many of us are eager to do in one way or another). Unfortunately, joining this CWG meant that we must deal with "nuts and bolts" issues relating to the NTIA's transition of its role to the global multistakeholder community. Your email is devoid of any resolution for replacing these functions currently carried out by NTIA. There are a variety of resolutions that can be imagined in an "internal to ICANN" proposal -- jobs to be taken over, processes to be built or adapted, documents to be written, working groups to be formed, dispute resolution procedures to be crafted, These could be configured in a number of different ways. Unfortunately, you have not provided us with a framework for any of this. Certainly, an "internal to ICANN" proposal would match up to each of these points in ways that are not quite as obvious as the current CWG proposal. For instance, in the absence of a contract, "determining the substance of the contract" is not directly applicable. However, the contract is the vehicle for setting forth ICANN's obligations regarding IANA. Without a contract, these obligations need to go somewhere, as does the ability to enforce them. So the "substance" still needs to be determined -- it just won't be in a contract (not likely anyway, but it's your proposal). Who will make this determination? How will this be vetted through multistakeholder processes? What document will contain this substance? How will it be enforced? I could go on, but I'm sure you get the point.</font></div><div><font color="#0000ff"><br></font></div><div><font color="#0000ff">So, I'm not sure what your Alternative is, but it is not an alternative to the CWG Proposal. If this were a Venn diagram, the two circles would be barely overlapping. As I stated in another thread "<span style="font-size:13px;font-family:arial,sans-serif">I don't think an "</span></font><span style="font-size:13px;color:rgb(80,0,80);font-family:arial,sans-serif">internal to ICANN" proposal was ever put on the table within the group prior to Frankfurt in any kind of tangible, </span><span style="font-size:13px;font-family:arial,sans-serif">concrete</span><span style="font-size:13px;color:rgb(80,0,80);font-family:arial,sans-serif"> fashion.</span><font color="#0000ff"><span style="font-size:13px;font-family:arial,sans-serif">" </span><span style="font-size:13px;font-family:arial,sans-serif">I will add now that I think that an "internal to ICANN" proposal still has not been put on the table within the group in any kind of tangible, concrete fashion -- w</span><span style="font-family:arial,sans-serif;font-size:13px">hich leaves us dancing with ghosts -- something out of which no progress can be derived, unfortunately. </span></font></div><div><br></div><div><font color="#0000ff">Greg</font></div><div><br></div><div><br></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left-width:1px;border-left-color:rgb(204,204,204);border-left-style:solid;padding-left:1ex">_______________________________________________<br>
CWG-Stewardship mailing list<br>
<a href="mailto:CWG-Stewardship@icann.org" target="_blank">CWG-Stewardship@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/cwg-stewardship" target="_blank">https://mm.icann.org/mailman/listinfo/cwg-stewardship</a><br>
<br></blockquote></div><br><br clear="all"><br><br><div><div dir="ltr"><div><div dir="ltr"></div></div></div></div>
</div></div>