[CWG-Stewardship] My concerns with the draft proposal and an alternative option

[Greg Shatan]

Alan:

Thank you for your email.  My specific thoughts are inline below. I
apologize for the length, but I have tried to be as comprehensive as
possible within a reasonable timeframe.


On Sat, Nov 29, 2014 at 12:23 AM, Alan Greenberg <alan.greenberg at mcgill.ca>
wrote:

>  As I have mentioned during the F2F meeting in Frankfurt and on the most
> recent teleconference, I have significant problems with the proposal
> currently on the table. I am taking this opportunity to present my concerns
> in somewhat more detail, and I will also present what I believe to be a
> viable alternative. The ideas presented are my own, but I do know that they
> are largely shared by my At-Large colleagues and by some others in the
> community.
>
> I am also quite aware that my alternative options are likely to be
> vehemently opposed by some.
>
> I should also add that there are aspects of the current draft CWG proposal
> that I strongly support. The Independent Appeals Panel is perhaps the most
> important one.
>
>
>
> *Overview *Many of my concerns are due to the large number of "details"
> that are, as yet, unspecified. Perhaps some of my concerns will be negated
> once there are sufficient answers, but I have the nagging feeling that for
> many, there will be no viable answer.
>

GS: I do not share your pessimism.  Indeed, I think that I have offered
viable and sufficient answers in this email, and others have done so in
their responses as well.


> This message will necessarily be long - my apologies for that.
>
>
>
> *Contract Co. *Many of the issues surround the "entity" (as it was
> referred to in Frankfurt). The draft somewhat glibly says that it will only
> sign the contract. But it seems to be outsourcing much of its
> responsibility to the Multistakeholder Periodic Review Team (PRT), and that
> seems problematic.
>

GS: I think this is more accurately characterized as delegating.


> Perhaps the intent is not that all of these things go to the PRT, but
> there does not seem to be anywhere else for the functions to go. Among the
> tasks that it has outsourced are consultation regarding the contents of
> future RFPs, RFP issuance, RFP evaluation, contract negotiation and
> contract enforcement. What it cannot outsource is addressing legal issues
> such as being sued by a bidder who failed for win the contract and other
> such possibilities.
>

GS:  This is fairly simple to resolve. The winning bidder must be required
to indemnify, defend and hold harmless the PRT.


> Whether it is possible to have such an empty company do all this remains
> to be demonstrated.
>

GS:  Contract Co. will need to have just enough substance to accomplish
these acts, all of which are well within the bounds of corporate
authority.  I see no reason why Contract Co. could not do all these things,
while remaining a lightweight, constrained entity.


> I will deal with problems with this outsourcing under the PRT.
>
> The jurisdiction under which the company is registered has been the
> subject of some discussion. Clearly there are those who feel that under no
> conditions can it be the US. At the same time, there are some indications
> (such as terms in the Kelly bill) that imply that the US Government may not
> be willing to accept anything other than the US. Note that I understand
> that the Kelly bill itself may wither and die, but to quote Milton Meuller,
> "We should also pay attention to it because the bill provides a very good
> benchmark for preparing for the kind of questions that the NTIA is likely
> to be asked after they get a complete proposal from the ICG and begin to
> implement it. The Kelly bill can be considered a list of the concerns that
> US-based interests are going to be using to assess the final proposal. The
> GAO Report is equally important in this regard. Ignore them at your peril."
> (E-mail to the CWG-Stewardship list on 23 Nov 2014)
>

GS: There's no getting around the fact that jurisdiction will be perceived
as an issue, and that it will need to be resolved.  But that is true of any
solution other than an "internal-to-ICANN" solution, which would keep
everything in the US (unless, of course, you propose to move ICANN, which I
am confident is out of our scope.  In any event, I don't think that
jurisdiction is as big an issue as some would like to think it is.  But
that's just me.  Regardless, I don't think that jurisdiction can be raised
in the abstract.  The specific concerns raised by specific jurisdictions
need to be explicitly stated.

>
> Without details of exactly how this corporation will exist, it is
> impossible to assure oneself that it cannot be captured or controlled by
> some entity or government(s).
>

GS: Obviously, we all need to work on "connecting the dots" (i.e., filling
in details).  As I've mentioned before, the articles of incorporation and
bylaws can be set up so that Contract Co. is essentially compelled to
accept the decisions of the PRT with virtually no discretion.  The
particular actions that can and can't be taken by the directors can be
carefully limited and circumscribed.  This is quite commonly done when
setting up corporations for specific purposes.  In some cases, it is
necessary that a company be "bankruptcy remote" (also sometimes referred to
as "bankruptcy proof").  If so, there are a series of prohibitions,
covenants and approvals baked into the bylaws that prevent the company from
putting itself in the position to be declared bankrupt.  There is also a
prohibition against the directors changing the bylaws to try to defeat
these prohibitions, covenants and approvals.  Similarly, corporations are
set up for specific purposes within the structure of a private equity fund
or hedge fund; these corporations are also highly constrained in their
actions.  This is all well trod ground.  I don't see how such a corporation
could be "captured" or controlled by another entity or a government.
However, without details of exactly how you expect this corporation to be
captured, it is impossible to see whether this is a credible threat at all,
even before putting in constraining and limiting controls.  Without
details, "capture" -- like "jurisdiction" -- is just a word being used as a
bogeyman or a rallying cry, stirring emotion but conveying no useful
information.



> Running IANA will be a treasured target by some countries and we do not
> know what lengths they would go to capture the contract. NTIA had the
> strength of the US (and its battleships and such) behind it.
>

GS:  Until this point, I had thought you were using the term "capture"
metaphorically.  Now I fear that you are using it literally.  I do not
think that Contract Co. needs to raise a standing army or build a fleet of
battleships.  Indeed, I can't think of an instance where a corporation has
resorted to physical force to avoid "capture."  I do recognize that there
are certain countries in the world where companies have been
"de-privatized."  We should avoid those.  More practically, it should be
set forth as a requirement that any respondent to an RFP must not be a
government or intergovernmental body, just as NTIA required, and have
protections in place to assure Contract Co./PRT that it cannot later be
captured.


> Contract Co. will not.
>

GS:  It will not need to (especially the battleships part).  It will be set
up to eliminate opportunities for capture, and it will have the protection
of the rule of law.

>
> There has been no discussion about how this entity, or any part of the
> overall proposal, is funded. More on this later.
>
>
>
> *Multistakeholder Periodic Review Team (PRT) *The PRT is effectively the
> operational arm of Contract Co. It is the entity that makes decision for
> Contract Co., presumably including those related to the RFP, contract
> negotiations, contract enforcement and much more. But by its very name, it
> is Periodic. It does not exist at all times and there are some in the
> community that have said it should be re-constituted afresh every time it
> is needed (perhaps like the Phoenix born from the ashes of its
> predecessor). I fail to understand to how it can take action on problems if
> it is not an ongoing entity.
>

GS:  I think that it is fairly clear that the PRT has to be in a state of
readiness in order to deal with "non-periodic" events. On the other hand,
we don't want the PRT to feel the need to justify its existence or fill
monthly meeting agendas or expand its scope.  These can be controlled by
the PRT's organizing documents (perhaps a charter).

>
> The description says that it is a "body" with representatives selected by
> the relevant bodies. Accepting that "relevant" is to be decided later, it
> is unclear under whose auspices this body is convened, and how we can
> ensure that it remains free from capture or malformation. It was suggested
> in Frankfurt that this body could be akin to (or even identical to) the
> IANA-CWG, but given that the entire concept of this elaborate
> infrastructure is to allow ICANN to be completely excluded from the IANA
> management process, presumably because it has ceased to carry out this
> function as well as all parties claim it is now doing, what makes us think
> that ICANN would take responsibility for this, or more to the point, could
> be trusted to do it properly?
>

GS: In terms of capture or malformation, I think the answer lies first in
the basic precepts of "multistakeholderism," which I am a strong believer
in, even when I disagree with a particular result.  Broadly speaking, by
constituting the team from a diverse set of stakeholder groups and
organizations, which formally select the members, you have de facto checks
and balances, as the members and their organizations have different
interests and are keeping a wary eye on the organization to see if is going
adrift or being pulled out of alignment.  The composition of the group must
also be calibrated to avoid giving too much power to anyone stakeholder
group or set of naturally aligned stakeholder groups.  Finally, you have to
give the organizations the ability to pull their representative if he/she
goes "rogue" (to borrow one of your suggestions for the ICANN Board).  In
order to capture such a group, you would need to capture enough members to
achieve consensus (i.e., a significant majority, to say the least), which
in turn would mean capturing a series of diverse, disparate and sometimes
opposed groups and organizations.  I think this might have happened in Star
Wars -- but even in fiction, it took three movies for Senator Palpatine to
become Emperor Palpatine, as well as acts of war to suspend the
multistakeholder model of the Galactic Senate.  I don't see this happening
in reality, unless the Dark Lords of the Sith are among us.  Seriously,
though, I think we have to have some faith in the multistakeholder model,
not just for the PRT, but for the future of Internet Governance generally.

As for whether the PRT could be akin to the CWG -- that does not imply that
the PRT would be under the ICANN umbrella.  I think the point was more one
of composition.  However, now that you raise the point, this might be a
valid alternative.  I think it is important to distinguish between "ICANN
the corporation" and "ICANN the community".  An ICANN multistakeholder
group is not the same as ICANN the corporation, which what I think you
refer to when you say ICANN above. So, while ICANN the corporation may not
be "trusted to do it properly," I have a much higher degree of confidence
that a multistakeholder group will, whether or not it takes some shelter
under the ICANN umbrella.  That does not mean these are the only
alternatives.  The PRT could exist without being aligned with any other
organization, it could be a committee under the auspices of Contract Co.,
or it could even become aligned with another existing organization (e.g.,
ISOC).

>
> So how this body, which is the critical keystone [
> http://en.wikipedia.org/wiki/Keystone_(architecture)] on which this
> entire superstructure depends, constituted, and funded. And how does one
> ensure that it is not corrupted, or captured?
>

GS: I believe I've answered this above.  Any further details on corruption
or capture scenarios would be appreciated (but leave out the battleships,
please).


> Or sued. A body as large as it will have to be will require infrastructure
> such as a secretariat - how do we ensure that IT is not subverted (just
> look at all the effort that has gone into ensuring an independent ICG
> secretariat)?
>

GS: I have my own opinions about the necessity of the effort that the ICG
took to ensure an independent secretariat (but maybe they had the time to
turn to such efforts).  Nonetheless, it may provide some useful lessons on
doing so, and such things are always much easier the second time around.


> And without a corporate backing of the PRT, its members would be
> personally liable in the case of a lawsuit. Who would want to serve on such
> a group? Moreover, in an environment where the PRT is taking very
> significant decisions, both financial offers and personal threats would be
> an effective method of capture (and presumably this is all volunteer work,
> or at most a modest stipend).
>

GS: Assuming arguendo that PRT is not aligned with any other body, Contract
Co. could purchase insurance to cover the PRT members, naming them as
additional insureds.  By the way, has anyone checked how we are protected
from personal liability and the possibility of being sued?  Does ICANN
carry "multistakeholder insurance?"  I would also be curious to know
whether anyone in this group has been subject to financial offers or
personal threats in order to capture them. I, for one, have not.  A funny
thing, too -- in those instances where capture occurs (say, soccer referees
or baseball teams) its usually pretty obvious when they go from free will
to puppetry.  Now, when you get to spycraft and other dark arts, it may be
more difficult, but I still think we are straying into the realm of fiction
here.

>
> Surely, the PRT, which is implicitly all powerful, would need a new
> oversight mechanism over it! And who oversees THAT oversight body?
>

GS:  Surely not. First, the PRT is not all powerful, implicitly or
otherwise.  Its members must answer to their constituents.  Similarly, the
oversight mechanism over the PRT is the diverse collection of stakeholder
groups and communities, not a body.  And no further body is needed after
that.  The threat of "infinite oversight" is a myth.

>
>
>
> *Customer Standing Panel (CSC) *It is unclear exactly what this body
> monitors. If it is JUST service levels committed to by IANA, the
> composition may be ok. But if it is also responsible for ensuring that IANA
> is following policy, then the composition MUST reflect the
> multi-stakeholder body or bodies that created such policy.
>

GS:  I personally agree that there should be multistakeholder
representation of some sort on the CSC.  But this is still an open issue.


> You cannot presume that the customers, who may have been vehemently
> opposed to any specific policy, will report that such a policy is not being
> policy. If the CSC is NOT monitoring adherence to policy, then who is? It
> does not seem to be covered in the proposal.
>

GS: The NTIA currently monitors policy adherence to an extent, at least
with regard to delegations and redelelegations.  The Del/Redel report must
describe how the del/redel follows existing policy.  While we haven't
nailed this down yet, I believe that receiving and reviewing Del/Redel
reports goes to the CSC in the first instance, and can be escalated to the
PRT if need be.  As to whether the CSC will report that policy is not being
followed -- if it doesn't, it risks destroying its own legitimacy.  That's
a pretty big risk to take.


> During e-mail discussions, someone said it was the job of the (for the
> gTLD space) GNSO. But it does not have the staff or Bylaw mandate to do so,
> nor would it have any standing to complain to whoever it is that would
> attempt enforcement (the PRT??).
>

GS:  The GNSO Council has in fact raised policy concerns regarding various
gTLD implementations and proposals.  I believe this is well within its
mandate, and it is worth considering whether the GNSO Council should have
standing to raise these concerns to the PRT and/or the IAP.

>
> There is reference to Liaison from ACs and SOs on the CSC. In the ICANN
> context, a Liaison has no power other than that of persuasion. They have no
> power to act if they are in disagreement with the majority of the full
> members.
>

GS:  In that case, it may be more appropriate for these to be members of,
rather than liaisons to, the CSC.  However, I would note that liaisons do
have the power of persuasion, which you used quite effectively on the GNSO
Council.  Finally, I would doubt that the CSC would be able to act by
simple majority,

>
>
>
> *Cost *Cost has been mentioned briefly above, but it is a significant
> issue. Aside from the costs of the infrastructure we are discussing here,
> there is the cost of IANA. Currently this is funded by ICANN. If ICANN were
> to be taken out of the picture (and the possibility of doing that is the
> ONLY reason for building all of this), where does the funding come from?
> From ICANN, out of the goodness of its heart, despite no longer having ANY
> control over how much money is demanded or how it is spent? By the gTLD
> registries, who have said they would likely fund THEIR part of the costs,
> but not the entire thing. By the ccTLDs who have clearly said we should not
> depend on them (with a few exceptions)?
>

GS: I agree that funding is an aspect that needs more attention.  But the
fact that we haven't yet turned to this in detail does not disqualify the
proposal in any way.  Contract Co. is granting ICANN a valuable right --
the right to perform a valuable service.  If ICANN paid a fee for that
right, it would not be out of the goodness of its heart.  There's no such
thing as a free lunch.  I'm confident that we will find a way to deal with
this, given the value that is inherent in the IANA Functions.

>
>
>
> *Acceptability *The last time I heard Larry Strickling talk about the
> stewardship transition, he said it would only take place if sufficient
> controls were put in place to address ICANN messing up (i.e., in the
> extreme, a rogue Board). That PRESUMES that it is ICANN at the centre of
> the IANA stewardship - why else would we care about ICANN accountability if
> ICANN were not involved. From that, my take is they envision the IANA
> responsibility being transferred to ICANN. The Kelly bill clearly presumes
> this as well - why else would it be attempting to put so many constraints
> on ICANN?
>

GS:  I disagree with this assumption entirely as I said to Holly earlier.
The NTIA is looking to transition stewardship of the IANA Function to the
global multistakeholder community, not to ICANN .

It is not at all clear that a proposal such as one that the CWG has put in
> this draft would be acceptable to the US government.
>

GS:  My crystal ball is at least as cloudy as yours, but I predict that a
proposal that failed to transition NTIA's role to the global
multistakeholder community, and instead transferred it directly into the
hands of ICANN, would be far more likely to be unacceptable to the US
government.  This could be the "internal to ICANN" concept's fatal flaw.

>
> It will certainly not be a favoured proposal from the point of view of the
> ICANN Board (who may not have a direct say in this but cannot be totally
> ignored either).
>

GS:  This may be true, but we would be betraying our mandate and our
constituents if we decided that our aim was to please the Board.  In any
event, I have faith (perhaps more than you) that the Board isn't going to
try to stop a disfavored proposal. That would raise quite a ruckus, if
ICANN the corporation were to turn on ICANN the community.  Remember, this
is not just one SO or AC, which the Board may choose to ignore at some
peril.  We are the massed army of stakeholders (unless, of course, we are
riven by division, which would be far more than unfortunate -- as Milton
notes elsewhere, the vultures are circling, and if the Board has
indigestion, that is the least of our worries.

>
>
>
> *Integratability *The ICG will be tasked with integrating the CWG
> proposal with that of the RIRs and the IETF. Although this is clearly their
> job and not ours, I have always believed that one needs to look ahead to
> ensure that there are no impassable roadblocks ahead.
>
> We do not definitively know what those proposals will be, but indications
> are emerging. Both bodies seem to be happy with how ICANN is managing IANA,
> but both feel that in the event of any untoward action, they could move the
> responsibility associated with their areas somewhere else. Since in both
> cases, it is the same body that sets the policy that would judge it, no
> great complexity is involved. In ICANN's case, since the bodies that set
> policy in the names space are (to a large extent) an integral part of
> ICANN, they cannot take action against their "parent" (so to speak). Thus
> this cumbersome alternative.
>
> Integrating these two approaches may be difficult.
>

GS:  It might be difficult; it might not. As you note, names is differently
situated than the other two areas.  Therefore, a one size fits all approach
was always unlikely.  By creating Contract Co. and the PRT, we are actually
closer to the model of the other two areas, which should make integration
easier, not harder.

>
>
>
> *Lost Opportunity *Part of the IANA Stewardship Transition is to put in
> place suitable ICANN accountability and governance changes so as to ensure
> the continuity of the IANA function.
>
> If all of the questions posed here, and the ones raised by others are
> addressed, we would end up moving from a situation where an entity (the
> NTIA of the US government) awards the IANA contract. The contract is
> currently held by ICANN but in theory at some future date, it could be
> awarded to some other organization, removing ICANN from any operational
> connection to ICANN.
>
> The new situation would be where Contract Co. awards the IANA contract.
> The contract will initially be held by ICANN but in theory at some future
> date, it could be awarded to some other organization, removing ICANN from
> any operational connection to ICANN.
>
> Notice the parallel wording. ICANN really has no motivation to change to
> effect this change. And in all likelihood any change associated with this
> transition will be minimal.
>

GS: I think you probably meant to say IANA at the end of each of those
paragraphs, rather than ICANN.  In any event, I understand the concept of
leverage here.  I think we exercise that leverage along the lines that the
two CWG's work is "interrelated and interdependent" and that Stream 1
accountability has to be resolved before there is a transition.  We can't
try to reform all of ICANN ourselves from the platforrm and mandate of
transitioning NTIA stewardship. That would be massive mission creep.  There
is a careful balance here in using the IANA Transition to ensure that
Enhanced ICANN Accountability is not just an empty phrase, but that balance
is lost if we put forth a plan that does not really transition NTIA's roles
and that reaches far beyond our mandate in order to enact major reforms.
We cannot do the job of the ICG or the Accountability CWG, but we do depend
on them both to do their jobs right.

Furthermore, I don't think Contract Co. is the status quo.  The NTIA is
controlled by the US Government.  Contract Co. is controlled by the
multistakeholder community.  What makes you think we will sit on our
collective hands? Also, I anticipate that the contract will have more
"teeth" in it to enforce accountability (including termination for breach,
which is absent from the current NTIA agreement except in extremely narrow
circumstances).

>
> If we go down the path of the current draft CWG proposal, I believe that a
> major opportunity will have been lost to reform ICANN.
>

GS:  I disagree for the reasons stated above.  We in this CWG may have lost
that major opportunity, but the ICANN community has not lost that
opportunity.  It's right next door in the Accountability CWG.  What we have
not lost is the ability to use our leverage judiciously to support the
"interrelated and interdependent efforts" of the CWG Accountability.  And
they way we can lose that is to be overtaken by internal divisions, failing
to meet our timeline, and squandering our legitimacy.  Frankly, I don't
think that is what's happening here -- there's a reason that ICANN
consensus is "rough" -- some divergence is expected, but the show must go
on.  Only where this true divergence (i.e., no view predominates) or strong
opposition.does the show not go on.  While I agree with Chuck that a formal
consensus call is premature, I think that in the fullness of time and
through our continuing good faith efforts, we will get there in good shape.


>
>
>
> *Alternative *Simply criticizing the current CWG draft proposal is not
> particularly useful without alternatives.
>

GS:  Alternatives can be helpful.  So can suggestions for improvement.
These can come from adapting certain aspects of alternatives, as has
already happened.  It can also happen when people who look for problems
also look for solutions.


> My alternative is certain to not please some of the parties in this
> discussion, but I believe that it is both possible and viable.
>
> All of the complexity of the CWG draft proposal is there to cover the
> eventuality that ICANN suddenly or gracefully stops performing the IANA
> function to the satisfaction of the community.
>

GS: I disagree, and I think this mischaracterizes both the proposal and the
work that led to it. The framework of the CWG draft proposal is there first
to replace the NTIA's roles.  As you will recall, we spent a couple of
hours defining the various roles that NTIA currently performs in relation
to IANA.  The CWG structure was then fit to those roles.  Dealing with
non-performance is built into the framework as well, but it is hardly the
sole reason for it.


> That was indeed the situation a number of years ago, and ICANN took
> effective action to rectify the problems (that is, the NTI did not have to
> yank the contract to fix the problems). At the moment all parties seem to
> agree that there are no significant outstanding major problems, certainly
> none that could justify a change in the status quo. But there is a
> recurrent fear of "what if". What if ICANN had the IANA responsibility in
> perpetuity and stopped caring. Or had a Board that deliberately and without
> community support took action or inaction to harm how the IANA functions
> are carried out (the "rogue Board scenario).
>
> These worst case alternatives are indeed possible. And since under the
> current ICANN Bylaws, the Board is effectively sovereign, little could be
> done short of changing the Board over a period of 3+ years.
>
> I suggest that there are ways to alter ICANN's Bylaws to allow the
> effective control of an out-of-control Board. These mechanisms will not be
> particularly appreciated by the ICANN Board, but I believe that such
> measures (or something similar) would be adopted if that is what is
> required to be granted IANA.
>

GS:  I think that you have taken your boat of the CWG's waters with this
statement.  Accountability is part of our responsibility, but it is
accountability relating to the IANA Functions.  Using that responsibility
to try to re-make ICANN from our group is a massive overreach.  We
(individually) can be part of that grander effort by participating in the
CWG on Accountability, and as a group, by maintaining that Stream 1 must be
resolved before the transition takes place.

>
> There are a number of components that I will describe. They are not
> necessarily a complete or even the correct set. Putting in place a complete
> set of cohesive recommendations is what the Accountability CCWG is being
> convened for. But the existence of the following as a starting point, I
> believe, demonstrates that there IS a way to proceed forward.
>
> -       ACs and SOs must be given the ability to recall their sitting
> Board member. There will be no need to await the end of the current 3-year
> term.
> -       Certain classes of decision regarding IANA can only be made with
> (for an example) a supermajority (2/3) of the Board's maximum
> Bylaw-mandated membership approving the decision. Without the bulk of the
> AC/SO Board members, there will not be a critical mass of Board members to
> take such a decision.
> -       Certain classes of decision regarding IANA may only be made after
> notification period and public comment. This would allow the ACs and SOs
> sufficient time to act to recall their Board members
> -       It is possible that the composition of the Board might need to be
> slightly altered to ensure that a recall of most but not all AC/SO Board
> members would be effective in halting action. Or a higher threshold than
> supermajority might be needed.
> -       Bylaws regarding GAC advice related to IANA might need to
> somewhat altered to compensate for the GAC not having sitting Board members.
> -       Similarly, non-affiliated ccTLDs would need to be worked into the
> equation.
> -       If allowed under California law, the Bylaws could be require that
> under certain circumstances, a Board decision could be appealed to an
> external body (similar to the proposal's Independent Appeal for IANA
> decisions) and that the decision would be binding and enforceable in courts.
>

GS:  I think your second and third suggestions might have a place in the
work of our group, and perhaps the one about GAC advice related to IANA
(but the motivation for that suggestion is still fuzzy to me).  The rest of
these fall outside our mandate.  If we were watching an ICANN Board
Committee with our mandate use that mandate to remake broad swaths of ICANN
governance with no direct relationship to IANA, the multistakeholder howls
would be deafening.

What I found most disappointing when I reached the end of this email for
the first time, was that there is really no proposal here.  As noted above,
we noted several roles (we called them "functions" in Frankfurt, but I
think that leads to confusion with the IANA Functions) that the NTIA plays
and that need to be replaced in some form (not necessarily on an exact
parallel basis, but they need to be dealt with and their raisons d'etre
need to be considered and carried through to any proposal).  For
convenience, I will repeat our list of NTIA roles below:

*#1 – APPROVAL FUNCTION OF CHANGES TO THE ROOT ZONE *

*#2 - PERFORMANCE REVIEW FUNCTION *

Periodic Review

Transactional Performance review (SLAs)

Perform (technical) audits and customer surveys

*#3 - CONTRACTING FUNCTION (ability to enter into a contract)*

Determining the substance of the contract

Award / renewal of contract

Understand what stakeholder concerns are

Issuance of RFPs

Contracting

Ability to seek public comments

*#4 – ENFORCEMENT OF THE CONTRACT FUNCTION (incl. renewal/rebidding)*

Termination of contract;

Ability to enforce

Ability to seek public comments

Ability to determine whether contract should be terminated, including
hearing of complaints

Listen to community and act on its behalf

Regrettably, I think your Alternative skips over all of this, perhaps due
to eagerness to fix ICANN (which many of us are eager to do in one way or
another).  Unfortunately, joining this CWG meant that we must deal with
"nuts and bolts" issues relating to the NTIA's transition of its role to
the global multistakeholder community.  Your email is devoid of any
resolution for replacing these functions currently carried out by NTIA.
There are a variety of resolutions that can be imagined in an "internal to
ICANN" proposal -- jobs to be taken over, processes to be built or adapted,
documents to be written, working groups to be formed, dispute resolution
procedures to be crafted,  These could be configured in a number of
different ways.  Unfortunately, you have not provided us with a framework
for any of this.  Certainly, an "internal to ICANN" proposal would match up
to each of these points in ways that are not quite as obvious as the
current CWG proposal.  For instance, in the absence of a contract,
"determining the substance of the contract" is not directly applicable.
However, the contract is the vehicle for setting forth ICANN's obligations
regarding IANA.  Without a contract, these obligations need to go
somewhere, as does the ability to enforce them.  So the "substance" still
needs to be determined -- it just won't be in a contract (not likely
anyway, but it's your proposal).  Who will make this determination? How
will this be vetted through multistakeholder processes?  What document will
contain this substance?  How will it be enforced?  I could go on, but I'm
sure you get the point.

So, I'm not sure what your Alternative is, but it is not an alternative to
the CWG Proposal.  If this were a Venn diagram, the two circles would be
barely overlapping.  As I stated in another thread "I don't think an "internal
to ICANN" proposal was ever put on the table within the group prior to
Frankfurt in any kind of tangible, concrete fashion."  I will add now that
I think that an "internal to ICANN" proposal still has not been put on the
table within the group in any kind of tangible, concrete fashion -- which
leaves us dancing with ghosts -- something out of which no progress can be
derived, unfortunately.

Greg




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