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Guru, perhaps that is what you think drives me, but it is not the case. I
must admit I am getting a bit tired of having people tell me what my
motivations are.<br><br>
I am arguing for what I believe is the best path forward. It does happen
to coincide with what I suspect the NTIA will accept, which makes it even
better in my mind. <br><br>
And I have no interest in discussing what the Board WANTS. I am sure at
some level, many Board members would prefer no substantive change (and
the current CWG comes pretty close to that with respect to ICANN needing
to change to meet the plan). <br><br>
Your quote regarding "or they come up with something that is
unacceptable to the Board" was out of context. What I said
(rephrased) was that my recollection was that the Accountability
Recommendation would go to the ICANN Board, and that if the Rec. was
totally unacceptable it would not be implemented. I have no interest in
tilting at windmills, I do not like to waste my time if indeed there is
NO chance that it would go forward. ICANN Bylaw changes MUST go through
the ICANN Board. That is a fact and all the posturing will not change
that.<br><br>
If the ALAC proposal were to go forward, it will NOT result with what the
ICANN Board wants. but hopefully something that they can live with.
<br><br>
I have no interest in discussing whether one group or another has lost
its moral authority, or a wish that the US Gov't should fall on its knees
before us.<br><br>
Alan<br><br>
<br><br>
At 13/12/2014 12:46 PM, Guru Acharya wrote:<br>
<blockquote type=cite class=cite cite="">Alan,<br><br>
So much of what you say is driven by what the NTIA wants and what the
ICANN board wants.<br><br>
For example: "...I think the chances are high that it will be
rejected by the NTIA either on overall dislike of the model..." and
... "... or they come up with something that is unacceptable
to the Board ..."<br><br>
NTIA has already pushed 4 constraints down our throats in a top-down
manner. ICANN pushed some additional constraints down our throats using
the Scoping Document. Within all those constraints, why are you looking
for additional ways to please NTIA and ICANN?<br>
<br>
I'm not sure how predicting acceptance by the top aligns with a bottom up
process.<br><br>
Its more about what "we", at the bottom of the community, want
regardless of what the top desires. And the NTIA should fall on its knees
and accept it. The NTIA is not doing anybody a favour. It has already
lost its moral authority to be the steward of the DNS.<br><br>
On Sat, Dec 13, 2014 at 10:40 PM, Alan Greenberg
<<a href="mailto:alan.greenberg@mcgill.ca">alan.greenberg@mcgill.ca</a>
> wrote:<br>
<dl>
<dd>At 13/12/2014 11:18 AM, Gomes, Chuck wrote:<br>
<blockquote type=cite class=cite cite="">
<dd>Thanks a lot Alan for responding. Please see my comments inline
below.<br>
<dd> <br>
<dd>Chuck<br>
<dd> <br>
<dd>From:</b> Alan Greenberg [
<a href="mailto:alan.greenberg@mcgill.ca" eudora="autourl">
mailto:alan.greenberg@mcgill.ca</a>] <br>
<dd>Sent:</b> Thursday, December 11, 2014 4:22 PM<br>
<dd>To:</b> Gomes, Chuck; Greg Shatan; Maarten Simon<br>
<dd>Cc:</b>
<a href="mailto:cwg-stewardship@icann.org">cwg-stewardship@icann.org</a>
<br>
<dd>Subject:</b> RE: [CWG-Stewardship] Strickling Remarks from 4 December
re IANA Transition and Accountability<br>
<dd> <br>
<dd>At 11/12/2014 10:28 AM, Gomes, Chuck wrote:<br><br>
<dd>Allan,<br>
<dd> <br>
<dd>I want to comment on a few of the points you make in the exchange
below.<br>
<dd> <br>
<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>The powerful reason I was referring to is I believe (and I have no
guarantee that it is supported by the majority of the Board, although I
have had some discussions) that a solution that gives IANA to ICANN
(requiring significant accountability changes that would implicitly
reduce their absolute power) would be far more palatable the Contract Co
model where instead of internal accountability, we have the threat of
external action (ie breach of the contract going somewhere else at some
point).<br>
<dd>[Chuck Gomes] Is there a word missing in “œ. . . </i></b>would be
far more palatable the Contract Co model where instead of internal
accountability, we have the threat of external action (ie breach of the
contract going somewhere else at some point)†. II don’t t
understand what you intended to say.</i></b></blockquote><br>
<dd>AG: Yes, there was a word missing, two actually. Removing the
parentheticals to improve readability:<br><br>
<dd>The powerful reason I was referring to is THAT I believe that a
solution that gives IANA to ICANN would be far more palatable THAN the
Contract Co model where instead of internal accountability, we have the
threat of external action.<br><br>
<dd>To be clear, it is my belief that if the Board were presented with
two options:<br>
<dd>1. The CWG Contract Co model;<br>
<dd>2. The ALAC model with IANA being given to ICANN and ICANN accepting
significant loss of Board autonomy related to IANA;<br>
<dd>that the Board would pick option 2.<br><br>
<dd>I also believe that this would be the preference for NTIA as well. If
you want the rationale for that, see the start of my reply to Jordan
Carter on
<a href="https://community.icann.org/x/YoEHAw">
https://community.icann.org/x/YoEHAw</a>, about 3/4 down the
page.<br><br>
<br><br>
<br>
</i></b><blockquote type=cite class=cite cite="">
<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>No. Today they have ultimate say over pretty much everything EXCEPT
where they accept binding arbitration to resolve contract disputes. The
Bylaws were written to give the Board such full power, and there has
never been a reason for them to give any of that power up. This, I
believe, is such a reason.<br>
<dd>[Chuck Gomes] Agree.<br>
</i></b><br><br>
<br>
<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>I see VERY little accountability changes to adapt to the Contract Co.
model. Other than the IAP, ICANN is going from one contracting entity
(NTIA) to another (Contract Co,) both of whom can make a decision to
reassign the IANA contract in the case of poor performance or whatever
reasons the contact may allow. To fix the IANA problems a number of years
ago, ICANN took measures to ensure that IANA was professionally managed
and at this stage is doing a fine job (by all reports). ICANN did not fix
the IANA problems with accountability measures but with standard good
management practices. I think it would do the same under contract
assignment by Contract Co.<br>
<dd>[Chuck Gomes] I would like to think that as well but shouldn̢۪t we
e have a mechanism in place if we are both
wrong?</i></b></blockquote><br>
<dd>If we are wrong, then either the the Accountability CCWG will through
up their hands and give up, which means the proposal is dead, or they
come up with something that is unacceptable to the Board (I think their
Recs go there, but not really sure), or they come up with something that
is judged insufficient by the NTIA and the proposal is dead.<br><br>
<dd>The Contract Co. proposal will not have much problem with the
Accountability CCWG because so little is needed (see my note to Jordan),
but I think the chances are high that it will be rejected by the NTIA
either on overall dislike of the model, or some of the many
"details" (including cost and funding) will not provide
sufficient certainty that it will work and continue to work.<br><br>
<dd>Either way has it's potential for failure. I've made my choice on
which I believe is more likely to succeed.<br><br>
<br><br>
<blockquote type=cite class=cite cite="">
<dd>The ATRTs have managed to make incremental changes that have enhanced
accountability, but virtually none that really change how decisions are
made and the involvement of MS in those decisions. Certainly ATRT2
TAKLKED about some such real changes, but they basically did not fly
because we got clear messages that the Board would resist them and we
backed off. <br>
<dd>[Chuck Gomes] Agree.<br>
</i></b><br><br>
<dd>Accountability will be forced upon ICANN (in my mind), only if it is
in exchange for something it really wants. And IANA is one such
thing.<br>
<dd>[Chuck Gomes] Agree.</i></b></blockquote><br>
<dd>As an add-on thought. The IANA issue is probably not sufficient to
immediately fix all accountability issues (ie Track 2 of the CCWG), but
if we push through the IANA-centric ones, that will open the door (I
think the expression is that the ideas will have been
"socialized" and not longer so foreign). Once the Board accepts
that it is not all-powerful, I think that the rest will be a lot easier -
perhaps not easy, but easier.<br><br>
<dd>Alan<br><br>
<br><br>
<blockquote type=cite class=cite cite="">
<dd>Alan<br><br>
<br>
<dd> <br>
<dd>Chuck<br>
<dd> <br>
<dd> <br>
<dd> <br>
<dd>From:</b>
<a href="mailto:cwg-stewardship-bounces@icann.org">
cwg-stewardship-bounces@icann.org</a> [
<a href="mailto:cwg-stewardship-bounces@icann.org" eudora="autourl">
mailto:cwg-stewardship-bounces@icann.org</a>] On Behalf Of </b>Alan
Greenberg<br>
<dd>Sent:</b> Wednesday, December 10, 2014 9:32 PM<br>
<dd>To:</b> Greg Shatan; Maarten Simon<br>
<dd>Cc:</b>
<a href="mailto:cwg-stewardship@icann.org">cwg-stewardship@icann.org</a>
<br>
<dd>Subject:</b> Re: [CWG-Stewardship] Strickling Remarks from 4 December
re IANA Transition and Accountability<br>
<dd> <br>
<dd>At 10/12/2014 02:53 PM, Greg Shatan wrote:<br><br>
<dd>Maarten:<br><br>
<dd>My answers are inline below.<br><br>
<dd>Greg<br><br>
<dd>On Mon, Dec 8, 2014 at 5:46 PM, Maarten Simon
<<a href="mailto:maarten.simon@sidn.nl">maarten.simon@sidn.nl</a>>
wrote:<br>
<dd>Hi Greg,<br>
<dd>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>
<dd>“If we could arrange via the bylaws t that the ICANNNNNN
board explicitly has to follow orders from a MRT-like structure,
<br><br>
<dd>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>
<dd>AG:<br>
<dd>I will no doubt echo some of what Olivier has said, despite Milton
having explained that he is wrong.<br><br>
<dd>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>
<dd>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>
<dd>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>
<dd>It is SO attractive to label ICANN as unchanging and inflexible, but
current evidence does not bear that out.<br><br>
<br><br>
<dd>we might not need a contract but have an (internal) MoU/SLA or
whatever. <br><br>
<dd>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>
<dd>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>
<dd>AG:<br>
<dd>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>
<dd>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><br>
<dd>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>
<dd>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>
<dd>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>
<dd> <br>
<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.†<br><br>
<dd>GS: Agaain, 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>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>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>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>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>
<dd>AG:<br>
<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>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>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><br>
<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>
<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>
<dd>AG: <br>
<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>Alan<br><br>
<br><br>
<dd>Greg <br>
<dd>Appreciate your response.<br>
<dd>Best,<br>
<dd>Maarten </blockquote><br>
<dd>_______________________________________________<br>
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