[CCWG-ACCT] got some lawyerly answers on membership structure

Eric Brunner-Williams ebw at abenaki.wabanaki.net
Thu Jan 29 00:33:30 UTC 2015


Keith,

If a "members" mechanism is proposed as a (possibly quite small) part of 
an overall attempt to improve accountability related to a still 
conditional transition, then we can, as Alan proposed, and I suppose 
ALAC proposes, simply promote SOs and ACs to "members", or we can ask 
what "members" are necessary and why.

So yes, I'm considering one notion of "member" -- one implicit in your 
note to Eberhard -- the assumption that registry operators, or rather, 
the delegees and contractees -- must be members.

Larry's remarks are not relevant to the idea, casually floated by 
several here, that the necessary means to replace the NTIA as a nominal 
source of oversight is reorganization to a membership form. You'll 
notice in your excerpt Larry didn't choose to mention any specific 
mechanism, reorganization to a membership form in particular, as a means 
to address the example questions he did choose to cite.

Membership could stand some clarification, it doesn't necessarily mean 
replication of the existing bylaws entities as members -- as this would 
simply promote the promoted and exclude the excluded, which is unlikely 
to substantively improve accountability should, in addition to a 
reorganization, a transition actually takes place.

Eric Brunner-Williams
Eugene, Oregon

P.S. Yes, I mentioned Verisign's RZM role as an exception to the general 
question, a "unique circumstance".



On 1/28/15 2:49 PM, Drazek, Keith wrote:
>
> Thanks Eric.
>
> I think you may be looking at this question far too narrowly.
>
> The charter and focus of the Accountability CCWG is not specific to 
> the IANA Functions and/or the Root Zone Management 
> responsibilities…that’s the immediate responsibility of the CWG 
> Transition.  We are primarily focused on replacing the backstop role 
> currently provided by NTIA, if and when they determine the community 
> has identified and recommended the requisite (and acceptable) 
> accountability reforms, structure and mechanisms. The two tracks will 
> necessarily come together prior to transition, of course.
>
> If there’s any question about this, I encourage you to read NTIA’s 
> latest official statement, in remarks by Larry Strickling on Tuesday 
> in DC (excerpt below):
>
> http://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-strickling-state-net-conference-1272015
>
> “The second process is addressing how to enhance ICANN’s 
> accountability to the global Internet community in the absence of the 
> contractual relationship with NTIA.  Stakeholders are working through 
> the Enhancing /ICANN Accountability Cross Community Working Group/ 
> (/CCWG - Accountability).  Early reports indicate the CCWG is making 
> significant progress on an agreement on the definition of the problem, 
> a list of “stress tests”, and the specific short term issues that need 
> to be addressed prior to the transition. /As we have consistently 
> stated, it is critical that this group conduct “stress testing” of 
> proposed solutions to safeguard against future contingencies such as 
> attempts to influence or take over ICANN – be it the Board, staff or 
> any stakeholder group--that are not currently possible given its 
> contract with NTIA.  We also encourage this group to address questions 
> such as how to remove or replace board members should stakeholders 
> lose confidence in them and how to incorporate and improve current 
> accountability tools like the reviews called for by the /Affirmation 
> of Commitments.”/
>
> //
>
> /Also, since Verisign’s RZM role was mentioned, I point you to NTIA’s 
> March 18, 2014 FAQ on the topic:/
>
> //
>
> /http://www.ntia.doc.gov/other-publication/2014/iana-functions-and-related-root-zone-management-transition-questions-and-answ/
>
> //
>
> *Q. What impact does this announcement have on the cooperative 
> agreement with Verisign?*
>
> A. Aspects of the IANA functions contract are inextricably intertwined 
> with the VeriSign cooperative agreement (i.e., authoritative root zone 
> file management), which would require that NTIA coordinate a related 
> and parallel transition in these responsibilities.//
>
> Hope this helps clarify a bit.
>
> Regards,
> Keith
>
> *From:*accountability-cross-community-bounces at icann.org 
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf 
> Of *Eric Brunner-Williams
> *Sent:* Wednesday, January 28, 2015 4:38 PM
> *To:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] got some lawyerly answers on membership 
> structure
>
> Keith,
>
> To respond to your question --
>
> Other than the unique circumstance that one contractee -- Verisign 
> Global Registry Service -- is, for historical reasons, one of the Root 
> Zone Management (RZM) partners, and, as you mention, someone's 
> employer, can anyone suggest a meaningful difference of interests in 
> the continued function of the Root Management Zone between, say, a 
> delegee's interests and a contractee's interests?
>
> Having worn both hats, I can't think of any.
>
> Feel free to point out something I missed, because if both ccTLDs and 
> gTLDs have the same interest in the continued function of the Root 
> Management Zone, then since this interest isn't unique to delegees and 
> contractees, neither are necessary to provide oversight of that 
> continued function.
>
> Whether there is some other interest that requires the inclusion of 
> delegees and/or contractees in some membership oversight scheme is 
> possible. Consistency and correctness of policy implemented by the 
> Root Zone Management (RZM) partners, as Eberhard points out (and as I 
> thought was common knowledge among those of us with 10+ years of 
> involvement), is such an interest, which of course, is not shared by 
> contractees, which are governed solely by contract.
>
> To restate: a possible membership model need not include duplicated 
> interests, and the interest in the continued function of the Root 
> Management Zone is sufficiently general that no claim of interest in 
> it must promote the claimant to member status, whatever that may be in 
> the cloud of "membership" proposals.
>
> Eric Brunner-Williams
> Eugene, Oregon
>
> On 1/28/15 11:58 AM, Drazek, Keith wrote:
>
>     Eric,
>
>     To be clear, no one has ever said that, “…only registries can
>     provide the necessary oversight of the Board as it relates to the
>     continued function of the Root Zone Management.” Where did you get
>     that?
>
>     In order for any accountability structure to be meaningful and
>     acceptable, it should represent all members of the community and
>     there should be appropriate balance among all community
>     participants and interests.
>
>     As an employee of a gTLD Registry and Chair of the GNSO Registries
>     Stakeholder Group, I can state definitively that we have a strong
>     interest in ICANN’s accountability to us and to the rest of the
>     community.
>
>     I find your suggestion that registries might not have a place in a
>     possible cross-community membership model odd, to say the least.
>
>     Regards,
>
>     Keith
>
>     *From:*accountability-cross-community-bounces at icann.org
>     <mailto:accountability-cross-community-bounces at icann.org>
>     [mailto:accountability-cross-community-bounces at icann.org] *On
>     Behalf Of *Eric Brunner-Williams
>     *Sent:* Wednesday, January 28, 2015 12:51 PM
>     *To:* accountability-cross-community at icann.org
>     <mailto:accountability-cross-community at icann.org>
>     *Subject:* Re: [CCWG-ACCT] got some lawyerly answers on membership
>     structure
>
>     On 1/28/15 8:50 AM, Drazek, Keith wrote:
>
>         If a ccTLD manager is not a member of the ccNSO, is paying no
>         fees to ICANN and is not bound by ccNSO policy, please help me
>         understand how they are impacted and why they would care about
>         the ICANN Board's accountability mechanisms to its community.
>         I fully understand why every TLD registry cares about the IANA
>         functions and changes to the root zone file, but our issue of
>         greater ICANN Accountability is a broader discussion than the
>         IANA-specific concerns and accountability mechanisms currently
>         being addressed via the CWG Transition.
>
>
>     It is not so very long ago that a (previous) Executive and
>     (previous) Board made changes requested by delegees of iso3166
>     code points conditional upon a form of agreement. The policy
>     pursued by that Executive and that Board were not subject to
>     substantive community review (notice and comment) prior to being
>     implemented, with the accountability issue I hope many, not just
>     the directly concerned, still recall.
>
>     Additionally, the interests of parties (of any type) need not
>     encompass the union of all interests of all parties in the
>     mechanisms and policies relating to accountability.
>
>     The pursuit of the narrow self-interest of a hypothetical ccTLD,
>     or gTLD, delegee or contractual party, through its operator,
>     should not, by itself, remove a party pursuing its narrow
>     self-interest from what ever may eventually be a body of
>     "members". Were it so, the removed would be at least some of those
>     the USG observed in the AOC which constitute " a group of
>     participants that engage in ICANN's processes to a greater extent
>     than Internet users generally."
>
>     However, given the general awareness that the continued function
>     of the Root Zone Management (RZM) partners is of fundamental
>     importance, and the limited interest _as_delegees_or_contractees_
>     in issues other than the continued function of the Root Zone
>     Management (RZM) partners, it seems unnecessary to encumber the
>     problem of accountability-via-membership (already quite difficult
>     if not intractable, in my opinion) with notions that delegees and
>     contractees, as delegees or contractees, contribute an interest
>     absent but for their status as "members", whether represented en
>     toto, or as self-organized aggregates, or by lottery.
>
>     In simple terms, why registries-as-members at all? Does anyone
>     believe only registries can provide the necessary oversight of the
>     Board as it relates to the continued function of the Root Zone
>     Management?
>
>     I think that the function of the Board is general oversight of the
>     registries, arising from its technical coordination of unique
>     endpoint identifiers delegated authority, and contractual
>     oversight arising from its delegated contracting authority, so the
>     assumption that registries have a necessary place in a
>     hypothetical membership model is one that should be examined
>     carefully for self-interest and self-dealing, as well as for
>     necessity and utility.
>
>     Eric Brunner-Williams
>     Eugene, Oregon
>
>
>
>
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