[IANAtransition] Accountability/protection mechanisms (was: Can we refocus the discussion? )

John Curran jcurran at istaff.org
Tue Apr 22 13:03:42 UTC 2014

On Apr 21, 2014, at 8:33 PM, Jay Daley <jay at nzrs.net.nz> wrote:
> So long as there is a board of directors of ICANN that can override community decisions and instruct IANA then that protection can never exist.  

Jay - 

I agree with the point above, but it is true only to the extent that 
"there is a board of directors of ICANN that can override community 
decisions", and that does not appear to be inevitable (see below)

> To be very clear, I am not casting aspersion on the ICANN board, merely pointing out this out as a structural fact.  To protect against this means one of 
> 1.  Limiting the decision making power of the board.  Highly improbable given basic corporate law.

Actually, it quite trivial to do (if one is open to exploring such...)

Let me provide at least two mechanisms; there are likely more available 
but two suffice for showing the point - 

A) Membership - ICANN already has the possibility of a membership
   structure, and such a structure can constrain the exercise of
   the powers of the Board. For example, what is one were to define
   the IETF, ASO, gNSO, and ccNSO as ICANN's four "members", and
   protect a section of the bylaws from change except by agreement
   of the membership, and provide that policy guidance to the IANA 
   shall be ratified by the membership. The result eliminates your
   concern of Board to IANA direction in a relatively simple change.
   (Please do not consider it an actual proposal; it is illustrative
   for the point only, as a real proposal would require significantly
   more consideration and forethought.)

B) Contractual - The entry of ICANN into an agreement does bind the 
   organization, and does so in a manner that can provide for very
   clear independent arbitration/enforcement.  The IETF has quite 
   explicit agreement regarding the services that IANA provides to
   them; the RIRs have slightly less clear agreement in terms of 
   services but very specific in providing third-party arbitration.
   The typical way that one party gets another to perform a task
   is via a contract; it should be possible for the DNS community
   to enter into such an agreement which specifies the terms of 
   service and provides for third-party enforcement.
Either of the above would provide significant protections against the 
(errant) Board guidance you seem worried about, and yet would avoid 
ejecting the IANA into a new structure with unproved governance and
to-be-defined relationships to the existing community. I am not sure
that either of the above mechanisms is necessarily a good idea, but
they are equally valid approaches to the problem.

> 2.  Creating enhanced community oversight that can override the board.  Which must mean another body otherwise it is still subject to board decisions.

Incorrect - see above; an enhance community oversight could be readily 
accomplished by membership or contractual measures.

> 3.  Separating out IANA from ICANN so that the new board of IANA enforce the protections.
> I'd be delighted to hear from you or anyone else against 3 just how they think 1 can work or what their plans are for 2.

Done.  I am not advocating for any of the above solutions, but do believe 
that it is important to show that IANA does not have to be separated to 
accomplish your stated goals. If there is some reason that approach is 
taken, it should be because it is the best option available and not for 
lack of consideration of the multiple alternatives.


Disclaimer: My views alone.

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