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

Thu Jan 29 17:24:46 UTC 2015

Eric,

Your continued focus on the Root Zone Management and associated interests in a secure and stable root is but a small subset of the community's overall work.

Registries, contractees and delegees (and the rest of the community) have far broader accountability needs than simply ensuring the root is operated in an acceptable manner. That broader reform is the work of the Accountability CCWG.

The "continued function of the Root Management Zone" is really the focus of the IANA Stewardship Transition CWG and I believe our charter is explicit that the CCWG Accountability defers to the CWG Transition in that area.

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: Thursday, January 29, 2015 12:00 PM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] got some lawyerly answers on membership structure

Keith,

The case against aggregates (of delegees and their agents) has been made by Eberhard. I won't repeat it. The case for merely replicating the Bylaws entities (SOs and ACs) as "members" -- the "least change" (or preservation of existing privileged access) -- has been made by several, overlooking Eberhard's observation -- perhaps due to casual GNSO centric assumptions.

Continuing to examine basic interests in the continued function of the Root Management Zone, after exhausting the interests of delegees and contractees, their agents (registrars where that model has been implemented), need not also necessarily be promoted to "member" as there is no unique-to-delegation-databases interest in the RMZ.

Again, the continued function of the Root Management Zone is a general interest, so no specific "member" need be created to ensure this interest is present in some hypothetical membership organization exercising oversight. The contracted parties within GNSO have ordinary business interests in the fees paid and the budgeted use, and an ordinary business interest in the Corporation's budgets is a viable candidate for a membership interest.

The odd thing about contemplating reorganization of the Corporation to "member" form is that we get a second bite of the apple -- we need not simply do what Esther and Mike and Louis did in 1998 in attempting to kluge up something that might be sufficient -- they lost an SO (the IETF/W3C/ETSI as the PSO in the '02 flurry of bylaws changes) and close to insolvent at several points. We can shed some thus far uncorrected errors, e.g., the independent existence of "business" and "access providers" as policy originating stakeholders/constituencies in the GNSO, and consider actors Esther and Mike and Louis overlooked yet are present in our current discourse -- Human Rights, Cultural Rights, Languages (to which our IDN projects accomplish in part), etc.

Eric Brunner-Williams
Eugene, Oregon

On 1/29/15 6:36 AM, Drazek, Keith wrote:
Thanks Eric, I appreciate your response. My replies inline below.  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 7:34 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

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.

>>KCD:  Agreed. It's absolutely fair to question the need for members, especially if there are other viable alternatives that deliver the same levels of accountability under California not-for-profit corporate law. Again, this is a prime example of why we need specialized legal expertise and advice. Also agreed, as I said previously, that the membership mechanism would be only a small (but important) part of an overall accountability regime, and one that would be used only in proscribed, exceptional and last-resort circumstances.

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.

>>KCD: I don't think individual registries (delegees and contractees) need to become members of ICANN. Rather, I think their respective existing stakeholder groups could become the statutory members, represented by elected/appointed group Chairs. This would ensure that individual registries who choose to keep ICANN at arms-length are not forced into a relationship they don't want. Obviously more details to work through on this front.

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.

>>KCD: I didn't suggest that Larry said anything about membership, pro or con. I referred to NTIA's position and Larry's comments to underscore that the Accountability track is much broader than the narrow focus of the CWG on IANA Stewardship Transition.

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.

>>KCD: Completely agree that more clarification is required. The SO-AC-SG suggestion was just one preliminary proposal. If there's a way to augment it, let's get those detailed suggestions on the table so we can discuss and evaluate.

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> [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<mailto: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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