<div dir="ltr">Alan,<div><br></div><div>I think it would be very short foresight if we refuse to play out the most obvious not-so-stressful scenario for the internal to ICANN approach - that MRT selects a new non-ICANN IANA operator. The 'We will leave it for the future MRT to decide' nonchalance needs to factor in what options we are leaving for MRT since this CWG is deciding the institutional arrangement. The MRT's options will be limited by what we decide in this CWG. If the internal-to-ICANN proposal is proposing that MRT doesn't have a legal vehicle to contract, then how is it supposed to make the new non-ICANN IANA operator accountable?</div><div><br></div><div>Regards,</div><div>Guru</div></div><div class="gmail_extra"><br><div class="gmail_quote">On Fri, Dec 12, 2014 at 2:55 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:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div><span class="">
At 11/12/2014 11:54 AM, Guru Acharya wrote:<br>
<blockquote type="cite">Hi Maarten,<br><br>
In the internal-to-ICANN approach that you suggest, I talk about the
scenario that the MRT orders/requires ICANN to give up IANA. I assume
ICANN peacefully agrees to give up IANA. The MRT would select a new IANA
operator through the RFP process. In this case, would there would be a
IANA Functions Contract between the new IANA Functions Operator and MRT
(legal vehicle for MRT being ICANN)? Would ICANN be allowed to compete in
the RFP in the next round? Everytime ICANN wins the RFP, there is an
internal-to-ICANN approach and everytime ICANN loses the RFP, there is a
external contract approach? I am understanding you
correctly?</blockquote><br></span>
I am not Maarten, but...<br><br>
I would see it more as a requirement by the MRT that ICANN divest itself
of IANA, and would set the rules for selecting a new host. <br><br>
Alan<br><br>
<br><br>
<blockquote type="cite"><span class="">Regards,<br>
Guru<br><br>
On Thu, Dec 11, 2014 at 10:09 PM, Maarten Simon
<<a href="mailto:maarten.simon@sidn.nl" target="_blank">maarten.simon@sidn.nl</a>>
wrote:<br>
</span><dl><br>
<dd>Hi Chuck,<br><br>
</dd><dd> <br><br>
</dd><dd><span class="">I like to respond with regard to your first comment: see
below<br><br>
</span></dd><dd> <br><br>
</dd><dd>Best,<br><br>
</dd><dd> <br><br>
</dd><dd>Maarten<br><br>
</dd><dd> <br><br>
</dd><dd> <br><br>
</dd><dd> <br><br>
</dd><dd><span class="">From: Gomes, Chuck
[<a href="mailto:cgomes@verisign.com" target="_blank">
mailto:cgomes@verisign.com</a>] <br>
</span></dd><dd><span class="">Sent: donderdag 11 december 2014 16:29<br>
</span></dd><dd><span class="">To: Alan Greenberg; Greg Shatan; Maarten Simon<br>
</span></dd><dd>Cc:
<a href="mailto:cwg-stewardship@icann.org" target="_blank">cwg-stewardship@icann.org</a>
<br>
</dd><dd><span class="">Subject: RE: [CWG-Stewardship] Strickling Remarks from 4 December
re IANA Transition and Accountability<br><br>
</span></dd><dd> <br><br>
</dd><dd>Allan,<br><br>
</dd><dd> <br><br>
</dd><dd><span class="">I want to comment on a few of the points you make in the exchange
below.<br><br>
</span></dd><dd> <br><br>
</dd><dd>1. “. . . the ICANN board has a
rather powerful reason for being flexible and accomodating†. Am I
correct that that reason is the risk of losing the IANA functions?
If so, I would agree but I would also point out that for that risk to be
real it seems to me that there must be some entity that could reassign
those functions. For now that is NTIA. What would it be if
NTIA goes away? <br><br>
</dd><dd> <br><br>
</dd><dd>MS: If the bylaws of ICANN would dictate so, the MRT could be given
the authority to decide that ICANN has to give up the IANA function and
hand it over to any new or existing structure MRT comes up with. The
ICANN board (nor the community, nor the GAC) would not have any further
say in this and ‘simply’ has to execute. This may sound unlikely but
in fact works exactly the same as with the proposed Contract co. The
board of the Contract co. will also have no say over the content of the
contract, the contracted party or the term and termination of the
contract and this will have to be arranged in its bylaws. If we seem to
trust that the board of Contract co. will follow orders of the MRT (even
in the far future) it is, I assume, because we think that we can find the
legal measures to in the end if necessary force the board of Contract co.
to do so. If that is possible within Contract co., and I guess we all
count on that, I do not see why it than can’t be done (technically)
within ICANN.<br><br>
</dd><dd> <br><br>
</dd><dd>2. “It is SO attractive to
label ICANN as unchanging and inflexible, but current evidence does not
bear that out.†Can you share any cases where ICANN has been
flexible about giving the Board the final say on a decision?<br><br>
</dd><dd>3. “I actually have faith that
the Accountability CCWG can come up with effective accountability
measures that ICANN will be obliged to accept if it is exchange for
keeping the IANA function†I hope you are correct but I have
serious doubts that that will happen unless there is a real risk of them
losing the IANA functions and a refer back to 1 above.<br><br>
</dd><dd> <br><br>
</dd><dd>Chuck<br><br>
</dd><dd> <br><br>
</dd><dd> <br><br>
</dd><dd> <br><br>
</dd><dd><span class="">From:
<a href="mailto:cwg-stewardship-bounces@icann.org" target="_blank">
cwg-stewardship-bounces@icann.org</a>
[<a href="mailto:cwg-stewardship-bounces@icann.org" target="_blank">
mailto:cwg-stewardship-bounces@icann.org</a>] On Behalf Of Alan
Greenberg<br>
</span></dd><dd><span class="">Sent: Wednesday, December 10, 2014 9:32 PM<br>
</span></dd><dd><span class="">To: Greg Shatan; Maarten Simon<br>
</span></dd><dd>Cc:
<a href="mailto:cwg-stewardship@icann.org" target="_blank">cwg-stewardship@icann.org</a>
<br>
</dd><dd><span class="">Subject: Re: [CWG-Stewardship] Strickling Remarks from 4 December
re IANA Transition and Accountability<br><br>
</span></dd><dd> <br><br>
</dd><dd><span class="">At 10/12/2014 02:53 PM, Greg Shatan wrote:<br><br>
</span></dd><dd>Maarten:<br><br>
</dd><dd><span class="">My answers are inline below.<br><br>
</span></dd><dd>Greg<br><br>
</dd><dd><span class="">On Mon, Dec 8, 2014 at 5:46 PM, Maarten Simon
<<a href="mailto:maarten.simon@sidn.nl" target="_blank">maarten.simon@sidn.nl</a>>
wrote:<br><br>
</span></dd><dd>Hi Greg,<br><br>
</dd><dd><span class="">Although I personally have not made up my mind as yet if the contract
co or an internal ICANN solution is preferable, I have posted a very
rough idea for an internal solution in another thread that I have
not seen your response to. I repeat it here as I am interested to here
from you if you think it would be legally possible (apart from the fact
that you probably do not support it for other reasons):<br><br>
</span></dd><dd>“If we could arrange via the bylaws that the ICANN boarard
explicitly has to follow orders from a MRT-like structure, <br><br>
<br>
</dd><dd><span class="">GS: This is a pretty big "if." Unlike Contract
Co., which would be built from the ground up to be a corporation with
very limited purpose and goals and limitations upon its directors and
officer, and thus lends itself to this "following orders"
model, ICANN is an existing organization with a large board and officer
group and many activities. At best, this type of organization does not
lend itself to such a model. At worst, it's not even
possible. But let's assume, solely for the sake of argument, that
the ICANN bylaws can be modified in this fashion. I am assuming
that the MRT will be "internal-to-ICANN" like the current SOs
and ACs (and in contrast to the ICG). Is that correct? If so,
how do you involve the global multistakeholder community (beyond ICANN)
as required by the NTIA?<br><br>
<br>
</span></dd><dd>AG:<br>
</dd><dd><span class="">I will no doubt echo some of what Olivier has said, despite Milton
having explained that he is wrong.<br><br>
</span></dd><dd><span class="">Yes, it is more difficult to retrofit such measures into the existing
ICANN, but then the ICANN board has a rather powerful reason for being
flexible and accomodating.<br><br>
</span></dd><dd><span class="">It is not clear how "internal" an MRT would be. It would be
organized under the auspices of ICANN. Whether it "reports" to
ICANN is something else altogether. The relationship between the IETF and
ISOC might be a good model. ISOC provides funding and perhaps legal
protection but I don't think that we could say that the IETF is internal
to ISOC or controlled by it. <br><br>
</span></dd><dd><span class="">The ICG and the Stewardship CWG have representation from outside of
ICANN. Yes, Milton points out that they were created due to pressure and
conditions set by the NTIA. As above, the desire to retain IAINA is a
mighty big carrot to continue the tradition.ICANN partially funded
NetMundial, and completely different form of MS event and it did so
without US government pressure. <br><br>
</span></dd><dd><span class="">It is SO attractive to label ICANN as unchanging and inflexible, but
current evidence does not bear that out.<br><br>
<br>
</span></dd><dd><span class="">we might not need a contract but have an (internal) MoU/SLA or
whatever. <br><br>
<br>
</span></dd><dd><span class="">GS: There really is no such thing as an internal MoU/SLA.
Both of these are agreements (just like the IANA Functions Contract), and
need to be made between two or more legal entities capable of
contracting. If the MRT-like structure is internal to ICANN, it
can't have a contract with ICANN -- that would be ICANN contracting with
itself. The "whatever" would have to be an internal
document of a non-contractual/non-agreement nature. Conceivably, it
could be a policy. If it is a policy, it would most likely have to
go through an ICANN Policy Development Process. Would this be done
separately by the ccNSO and the GNSO under their separate PDP
guidelines? Or would we try to put together a joint PDP Working
Group? And how long would this PDP take to develop an "IANA
Functions Policy"?<br><br>
</span></dd><dd><span class="">The other thing the IANA Functions Contract establishes is that the
right to run the IANA Functions ultimately resides in Contract Co.
ICANN's right to do it is purely contractual; essentially, ICANN is a
licensee, and the MRT is a a licensor. Under this scenario, the
current IANA Contract goes away, and ICANN is left holding the right to
perform the IANA Functions. This means that the IANA Functions are
now an inherent right of ICANN This is a very different
overall set-up, with different consequences. Losing a right one has
by contract is a very common problem, and is as old as contracts.
Losing an inherent right and sector of services because a committee says
that you have failed to live up to internal policies is both very
uncommon and very novel, creating considerable uncertainty even if it is
a technical possibility.<br><br>
<br>
</span></dd><dd>AG:<br>
</dd><dd><span class="">I have no clue as to the legal issues involved, but apparently ICANN
can sign a MoU with an internal body. The relationship between ICANN and
the At-Large regional At-large Organizations (RALOs) are established
through MoUs. And although you presume that the MRT would be wholly
internal to ICANN, that is a premise in your mind, but not mine.<br><br>
</span></dd><dd><span class="">Yes, without Contract Co, ICANN has the right to continue performing
IANA functions. That provides a level of stability that the possibility
of moving it (potentially every 5 years if some people have their way).
But if the MRT can direct how that is done, that may not be so bad. And
It is not inconceivable that the MRT could direct ICANN to divest itself
of IANA in extreme situations.<br><br>
<br>
</span></dd><dd><span class="">If the ICANN board would at a certain moment in time still decide not
to follow orders of the MRT, I would assume it may be sued by affected
parties for violating its own bylaws. <br><br>
<br>
</span></dd><dd><span class="">GS: Litigation should be a last resort, not a first resort, when it
comes to enforcement. Contract Co. can terminate the contract (or
decide not to sign another one when it expires). The MRT has no such
ability. That is why you are suggesting litigation -- which is not
an "internal-to-ICANN" solution at all. In addition to
not being "internal-to-ICANN," litigation (in any jurisdiction)
is expensive, lengthy and consumes great time and resources, and may not
produce a result in any kind of useful timeframe. In any event, who
are the "affected parties" that would sue? Is it only one
registry, or is it many? What if it's a stakeholder group, such as
"civil society"? If there are many litigants, they would
need to enter into some sort of joint litigation agreement, form a
coordinating group and deal with a whole host of other things. And
not every affected party has a litigation war chest to go up against
ICANN -- unlike Contract Co., which will be indemnified. I don't think
there's any way that ICANN would agree to indemnify, defend and hold
harmless every "affected party" that might challenge a decision
relating to IANA Functions. So, litigation funding would be a very
real issue. <br><br>
</span></dd><dd><span class="">Finally, I'm not at all sure that the "affected parties"
will have the standing to sue ICANN for violating its bylaws. This
might be a right that a shareholder would have if ICANN had shareholders
(but nonprofits don't have shareholders). Third parties may not
have a cause of action here on that front, and would need to find some
other theory that supports a lawsuit. By contrast, breach of
contract litigation is fairly straightforward (not that I'm supporting
litigation before other forms of escalation are exhausted).<br>
</span></dd><dd> <br><br>
</dd><dd>We further may dictate in the bylaws that ICANN has to give up the
IANA function if decided by this MRT and of course seal it by dictating
that these specific articles may only be changed with the explicit
consent of the MRT.†><span class=""><br><br>
<br>
</span></dd><dd>GS: Again, I'm not at all sure we can dictate in the bylaws that
ICANN has to "give up the IANA function if decided by the
MRT." (By contrast, it's quite clear that ICANN can enter into
enforceable obligation if it signs an agreement with a third party.) But
again, let's assume it for the sake of argument. In your scenario,
it is implicit that the right to perform the IANA Functions is an
inherent right of ICANN, not a right granted to it by a third
party. So instead of Contract Co. terminating an agreement, we have
the ICANN Board being instructed to cause ICANN to cease part of its
services. I am much more skeptical that this is a realistic
assumption, especially since it could run counter to the fiduciary duty
of the Directors to ICANN. (By contrast, I don't see the MRT
instructing Contract Co. to do something counter to Contract Co.'s
interests, given the limited scope and purpose of Contract Co.) But
let's go on. The concept of ICANN "giving up" the IANA
functions is quite nebulous. Since it's an inherent right of
ICANN's, ICANN would have to run the RFP to find the next IANA Functions
Operator. Are you assuming that the MRT will do this as well,
rather than ICANN? That seems like another big assumption. And what
exactly would ICANN be transferring? If it is an asset of ICANN, it
may expect compensation for it (indeed there could be fiduciary duty
issues if the Board "gives it away." <br><br>
</dd><dd>Also, once the IANA Functions are transferred away from ICANN, how
will oversight and accountability continue (since all of the oversight
and accountability is "internal-to-ICANN") -- this seems like
quite a big issue in terms of "separability," actually.
Will the new IANA be required by the RFP to amend its bylaws and
replicate the MRT and the CSC and the IAP (and the IRB) to match the
current set-up?<br><br>
</dd><dd>Another big difference (and I think a disadvantage) is that there is
no periodic expiration of the IANA Contract, with the implicit or
explicit promise of an RFP or at least a re-examination of the terms of
the agreement. In essence, this now becomes ICANN's right in
perpetuity, unless it fails to properly perform the IANA Functions in a
very significant and ongoing way.<br><br>
</dd><dd>Finally, while there are ways to limit bylaw changes that i am aware
of under US law (e.g., supermajority voting combined with board
structuring), I really don't think that this power can be put into the
hands of the MRT without a host of other governance changes to
ICANN. Of course, without research I can't be sure, and it may be
that some significant reworking of ICANN's overall Board and governance
structure could elicit this result. But that would require further
research and consideration.<br><br>
</dd><dd>Overall, this seems a lot more complex and uncertain than the set-up
in the Draft Proposal. This also does not deal with operational
aspects of replacing NTIA. In addition to an MRT-like structure,
are you also assuming a CSC-like structure to provide basic operational
oversight of the IANA Functions and an Appeals Panel for disputes
regarding how the IANA Functions are carried out? If so, there's no
real advantage in terms of the level of complexity (and probably a
disadvantage, at that). In any event, any proposal has to deal with
more than just separability.<br><br>
<br>
</dd><dd>AG:<br>
</dd><dd>Perhaps it is time for us to stop talking about what we think might
not be possible (as the above paragraphs do several times) and get some
facts.<br><br>
</dd><dd>ICANN regularly accepts the concept that an external body can tell it
exactly what to do - many of its contracts specify binding arbitration
which leave the ICANN Board with no wriggle room. ICANN considers this
preferable to litigation, and it accepts the consequences that it will be
bound to honour what an external party dictates.<br><br>
</dd><dd>I actually have faith that the Accountability CCWG can come up with
effective accountability measures that ICANN will be obliged to accept if
it is exchange for keeping the IANA function.<br><br>
<br>
</dd><dd>I know it is (still) very rough and I directly agree that separating
the IANA function will in a legal sense probably be a lot more difficult,
I think it would be possible under my legal system at home.<br><br>
<br>
</dd><dd>GS: I am not sure that this is impossible, but there are a
number of very fundamental "ifs" and assumptions here that seem
to make this speculative and uncertain in the extreme, with no virtue
other than to be "internal-to-ICANN." I also don't see
the advantages of this set-up, but perhaps I am missing
something.<br><br>
<br>
</dd><dd>AG: <br>
</dd><dd>Then we agree to disagree. I see stability, working with a known
entity, lower costs (potentially a LOT lower) and not adding significant
complexity and processes as being a large benefit. I see not having to
deal with lawsuits over failed RFP bids to take the IANA contract as a
benefit (in many cases, suing after a failed bid is almost automatic. I
value a higher degree of certainty that the three core IANA functions
will stay together instead of being fractured as the result of mandatory
RFPs. I could go on. <br><br>
</dd><dd>Alan<br><br>
<br>
</dd><dd>Greg <br><br>
</dd><dd>Appreciate your response.<br><br>
</dd><dd>Best,<br><br>
</dd><dd>Maarten <br><br>
</dd><dd>_______________________________________________<br>
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</dd></dl></blockquote></div>
</blockquote></div><br></div>