<html>
<head>
<meta content="text/html; charset=utf-8" http-equiv="Content-Type">
</head>
<body bgcolor="#FFFFFF" text="#000000">
Hello all,<br>
<br>
my comments in-line, responding both to Milton's and Greg's points:<br>
<br>
<div class="moz-cite-prefix">On 11/12/2014 07:46, Greg Shatan wrote:<br>
</div>
<blockquote
cite="mid:CA+aOHUTyG9ZZpb+H+k09OQapHo_e0jMe_2UPhTD+aXFquFuU1A@mail.gmail.com"
type="cite">
<div dir="ltr">My further responses are inline.
<div><br>
</div>
<div>Greg</div>
<div class="gmail_extra"><br clear="all">
<div>
<div class="gmail_signature">
<div dir="ltr">
<div dir="ltr">
<div dir="ltr">
<p style="margin:0in 0in
0.0001pt;font-size:11pt;font-family:Calibri,sans-serif;background-image:initial;background-repeat:initial"><br>
</p>
</div>
</div>
</div>
</div>
</div>
<br>
<div class="gmail_quote">On Wed, Dec 10, 2014 at 9:43 PM, Alan
Greenberg <span dir="ltr"><<a moz-do-not-send="true"
href="mailto:alan.greenberg@mcgill.ca" target="_blank">alan.greenberg@mcgill.ca</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div><span class="">
At 10/12/2014 07:12 PM, Milton L Mueller wrote:<br>
<blockquote type="cite"><a moz-do-not-send="true"
name="14a375e5ad9d00b0__MailEndCompose"></a>
<br>
<b>From:</b> <a moz-do-not-send="true"
href="mailto:cwg-stewardship-bounces@icann.org"
target="_blank">cwg-stewardship-bounces@icann.org</a>
[<a moz-do-not-send="true"
href="mailto:cwg-stewardship-bounces@icann.org"
target="_blank">
mailto:cwg-stewardship-bounces@icann.org</a>] <b>On
Behalf Of </b>Olivier
MJ Crepin-Leblond<br>
<br>
I would say that this has already been demonstrated
in the making up of
the ICG and the current CWG, both of which include
non ICANN participants
from the global multistakeholder community.<br>
<br>
MM: Hello Olivier. Both the ICG and this CWG have
been empowered by an
external entity – the NTIA. It was the NTIA that
kicked off the process
by signaling its willingness to let go. It was NTIA
that told ICANN to
convene but not control the process. It was the NTIA
that set the
parameters and basic criteria a transition proposal
had to meet. It is
the NTIA, and the US government more broadly, that
will ultimately
determine whether the proposals we develop will be
implemented. To look
at these processes as outgrowths of processes
internal to ICANN is to be
fundamentally out of touch with what is going on
here. As Jordan Carter
pointed out in a message a few minutes ago, given
the concessions we had
to wring out of ICANN to make these processes as
independent as they are,
it is evident that these examples you hold up would
have been very
different had they been internal to ICANN. </blockquote>
<br>
</span>
You seem to ignore the powerful draw of keeping IANA
without the Contract
Co. complexity, cost and potential for instability.
Those are strong
reason for ICANN to adapt.</div>
</blockquote>
<div><br>
</div>
<div>GSS: Having spent some time thinking through the
consequences of an "internal to ICANN" concept, I think it
is just as complex, if not more so, than the CWG draft
proposal. Further, I think that the "potential for
instability" is the hallmark of effective accountability.
If heads won't roll, then the chances that oversight and
accountability will be effective drop dramatically.</div>
</div>
</div>
</div>
</blockquote>
<br>
OCL: I am not sure that the threat of separation has any teeth if
the Contract Co. is as much an empty shell as you make it out to be.
If Contract Co. is instructed by the MRT to end the contract with
the current IANA functions operator, ICANN, how will it be able to
sustain any legal challenge from ICANN. You cannot enter litigation
without a significant financial backing. In the case of a contract
severance, there will be no IANA functions operator to fund the MRT
or the Contract Co. defense.<br>
<br>
OCL: The ALAC's proposal rests on strong accountability mechanisms
that would not let the current IANA functions operator to act
contrary to the public interest, hence the emphasis that the
Accountability CCWG needs to make some serious proposals - and hence
the tragedy that the accountability process has started so late. We
do not dispute the need for an MRT - hence if the MRT decides to
allocate the contract to another entity than ICANN, bearing in mind
the strong accountability mechanisms that will be in place at ICANN,
processes will be in place to ensure an amicable transfer.<br>
<br>
<br>
<blockquote
cite="mid:CA+aOHUTyG9ZZpb+H+k09OQapHo_e0jMe_2UPhTD+aXFquFuU1A@mail.gmail.com"
type="cite">
<div dir="ltr">
<div class="gmail_extra">
<div class="gmail_quote">
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div><span class=""><br>
<br>
<br>
<blockquote type="cite">Similarly, I would point out
that a totally independent MRT that does not make
use of ICANN's existing
structures as a convenor would be missing a
coordinated Governmental
involvement. Indeed, only ICANN has the ability to
make use of its
members to relate back to the GAC and for the GAC to
express points. A
totally independent MRT would have individual
governments speaking. Of
course, individual governments were able to speak
outside of ICANN at,
say ITU meetings or at NetMundial - but they were
not restricted to a
handful of seats for the whole world.<br>
<br>
MM: The MRT _<i>will</i>_ make use of ICANN’s
institutionalized
representational structures. No one who has thought
seriously about the
composition of the MRT has proposed anything
different from that. The
GNSO SGs will be putting people on to the MRT, so
will the ccNSO, so will
the GAC, so will SSAC, so will ALAC. So will
entities outside of ICANN.
But it will be independent of ICANN legally, which
as Greg explained is
essential.</blockquote>
</span></div>
</blockquote>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div><span class=""><br>
</span>
But we have not yet explored exactly who will be
convening this body, or
what exact structure it has. Greg has explained that for
a body to have
contractual terms which it will be compelled to honour
(whether by
contract or MoU), it has to have some formal status, but
this undefined
body will have a very complex relationship with Contract
Co and I have
seen no discussion about how that will happen. <br>
</div>
</blockquote>
<div><br>
</div>
<div>GSS: I'm not sure I understand your concern about a
"convenor" for the MRT. It would be put in place as a
necessary part of the IANA transition plan accepted by the
NTIA and the global multistakeholder community (as
represented by the ICG). I don't think it needs a formal
"convenor" beyond that. As for the structure, we have
discussed that it will be a broadly multistakeholder
group, with members formally selected by and acting as
representatives of their communities. Getting the details
of this right is not a small task, but it is an
implementation-level task. The policy-level concept is
clear. Frankly, I don't think the relationship between
the MRT and Contract Co. is all that complex. The
fundamentals of that relationship can be clearly expressed
in the MRT's charter and in the articles of incorporation
and bylaws of Contract Co.. <br>
</div>
</div>
</div>
</div>
</blockquote>
<br>
OCL: The composition of the MRT is not just a mundane implementation
detail. It is at the core of the balancing of stakeholder interests.
We really need to get all the details right for this:<br>
- what the balance/composition of the stakeholders represented will
be<br>
- how the selection of these stakeholder representatives will take
place<br>
- whether there are term limits for these stakeholder
representatives<br>
- what accountability mechanisms are there for these stakeholders to
indeed act in the best interests of their stakeholder group<br>
- how they relate back to their stakeholder groups<br>
<br>
Without determining these details of this composition, I reiterate
that we might be building a five legged sheep, a MRT that could go
rogue; a disenfranchised MRT; a MRT that has no teeth nor means to
defend itself.<br>
<br>
Also - what is the legal status of the MRT? Will it also be a not
for profit company? If so, will it have directors? What internal
accountability mechanisms will it have? These details will make all
the difference to the workability of the scenario that's currently
suggested by the CWG.<br>
<br>
<br>
<blockquote
cite="mid:CA+aOHUTyG9ZZpb+H+k09OQapHo_e0jMe_2UPhTD+aXFquFuU1A@mail.gmail.com"
type="cite">
<div dir="ltr">
<div class="gmail_extra">
<div class="gmail_quote">
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div><span class=""><br>
<br>
<blockquote type="cite">MM: As a sideline, I am a bit
disturbed by the special emphasis you are placing on
governmental
involvement. Outside of their jurisdiction,
Governments’ only claim to
involvement in ICANN is as one of many voices in the
policy development
process. I do hope you, and all ALAC members,
understand that the IANA
functions contractor is not a policy making
institution, nor is it
supposed to be a vehicle for circumventing or
vetoing
policy.</blockquote>
<br>
</span>
Are you saying that in this case, a MS body will not
have any government
involvement. <br>
<br>
I am more than a bit troubled that now
"multistakeholder" means
the multistakeholders that someone decide need to be
involved, but not
others.<br>
<br>
If that is indeed true, I would suggest that this be
said VERY clearly
and openly.<span class=""><br>
<br>
GSS: I won't presume to speak for Milton, but reading
all of this segment together, it's clear to me that he
is not saying that the MRT will not have any
government involvement. Rather, I believe he is
saying that the GAC will have representatives on the
MRT who will participate on an equal footing with
other stakeholders. So, I think you are "troubled"
here for no reason.<br>
</span></div>
</blockquote>
</div>
</div>
</div>
</blockquote>
<br>
Could the GAC appoint representatives to entirely independent
organisations/bodies and yet retain some kind of "liaison" link with
these representatives?<br>
<br>
<br>
<blockquote
cite="mid:CA+aOHUTyG9ZZpb+H+k09OQapHo_e0jMe_2UPhTD+aXFquFuU1A@mail.gmail.com"
type="cite">
<div dir="ltr">
<div class="gmail_extra">
<div class="gmail_quote">
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div><span class="">
<blockquote type="cite">MM: When it comes to the IANA
functions, we do not need governments “speaking,”
collectively or
individually, about implementation. We need them in
their role as ccTLD
administrators, in which case they are just another
IANA customer.
Insofar as they are indirectly affected by the IANA
functions, they are
just another internet user stakeholder group – no
different from or more
important than noncommercial organizations or
business users. There is no
legitimate reason to afford governments a special
collective voice in the
MRT. Even in the terms of the Tunis Agenda, a
document written by and for
governments, IANA qualifies as “day to day technical
and operational
matters” and thus as something to be left to the
private sector.<br>
<br>
At this stage, I could use exactly the same wording
about the current CWG
first draft, replacing "other than to be
'internal-to-ICANN"
with "other than to be separable from ICANN".<br>
<br>
MM: The rationale for separability has been
explained countless times. It
is an accountability measure, a way of giving the
community the most
meaningful form of redress in case the functions are
abused or not
performed well. Moreover, the IANA functions have
always been under a
contractual relationship. The burden of proof is on
those who would say
IANA functions should be perpetually locked in to
one corporation. And I
completely agree with Greg on this question: we hear
your discomfort with
Contract Co but we have no idea what positive value
you are seeking to
advance by opposing it, other than to keep
everything within ICANN.
</blockquote>
<br>
</span>
Yes, separability *IS* a method of forcing
accountability. But it is not
the ONLY such method.</div>
</blockquote>
<div><br>
</div>
<div>GSS: It may not be the only method, but it is the
ultimate method. Like other ultimate methods it should
not be used lightly -- but it should be available. <br>
</div>
</div>
</div>
</div>
</blockquote>
<br>
I agree. But it needs to be realistically workable. If separation
means the MRT and the Contract Co. end up with no funding whatsoever
then the separability on paper has no reality. Accountability
mechanisms, on the other hand, have no weakness: if a decision is
not made in-line with what's on paper, then mechanisms should be in
place to automatically kick in.<br>
<br>
Kind regards,<br>
<br>
Olivier
</body>
</html>