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

[Gomes, Chuck]

Malcolm,

Thanks for taking the time to write this.  I think I am on the same page as you on most of what you say.

First let me say that I like what you said here: " Such a model sees ICANN a the vehicle by which the community develops its policy, with ultimate policy 'sovereignty' conceptually and morally lying within the community consensus as expressed  through ICANN community processes; this is as opposed to a model in which ICANN seen a having a separate, corporate view on policy, where ICANN consults the community but is able and entitled to override it."  Unfortunately we have seen too much of the latter in the last couple of years.

I also agree with you on this:  " I also worry that we are valuing the timetable too highly, and allowing that to compromise the thoroughness of discussions."  I personally believe that we need to work diligently to try to meet the target dates, but if we get to a point that that means compromising, then we need to adjust our targets.  We need to get this right.  And I think most people agree with that.

But I don't completely agree with you on this:  " The third area is the most difficult one. Since a separate CCWG on Accountability has been convened (even though it has not yet started work), all matters that even remotely touch upon its purview have been declared out of scope for this CCWG."  I definitely do not think that this is the case.  As a member of the charter DT, I know for a fact that we tried to ensure that accountability was not an issue just for the ICANN accountability work. And I do think that we need to be very careful about assigning issues too quickly to track two of the CCWG to quickly.

I also support this: " coordination between us and CCWG-Accountability would be sensible".  In fact our charter calls for that.

Finally you ask a good question: " Do you really want to leave questions like this to be resolved by ICG alone?"  First of all, I am not sure it is the job of the ICG to resolve issues between the two WGs.  More importantly, I also believe that it is our job to do the resolving to extent that we can.  That is why I think you may be right that we may need to put a place holder in our proposal to be filled once the Accountability CCWG finishes its work sufficiently for our needs.  I hadn't thought of that before but think it might be needed.  It's certainly is worth serious consideration.

Chuck


-----Original Message-----
From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Malcolm Hutty
Sent: Monday, December 01, 2014 9:12 AM
To: Alan Greenberg; Martin Boyle; Phil Corwin; Olivier Crepin-Leblond; cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option

On 01/12/2014 03:50, Alan Greenberg wrote:
> Malcolm, can you be more specific on what accountability issues are 
> critical to a successful transition, presuming that the current CWG 
> proposal goes forward?

Certainly, I'd be pleased to set them out.

I'm afraid this is going to be a long message, so let me say up front that I think the best way of dealing with the issues I raise is to include in our draft placeholder text, intended to be replaced by recommendations from CCWG-Accountability Workstream 1. This should be accompanied by a statement that we believe that those recommendations must be implemented as part of any successful transition of stewardship of the DNS from NTIA to multistakeholder stewardship.


The reasoning and justification for that proposal now follows, at some length I'm afraid.


I believe that in relation to the DNS, a proposal to transition from the current NTIA stewardship to full community-based stewardship must address three core issues.

1. To ensure the ongoing effectiveness of IANA as an 'executing' (i.e.
non-policymaking) entity, including such issues as ensuring its operational performance, adherence to procedure, and the execution of its responsibilities in a manner that preserves the operational stability and resilience of the DNS structure within its purview, and maintains their security.

2. To preserve the independence and policy-making authority of the ccTLDs, and the right of the local communities they serve to determine who should operate their respective ccTLDs, on what terms, and under what policies, all in accordance with applicable (local) law. In particular, any proposal must address how to avoid either the operational control of IANA, or the policy-making authority of ICANN for gTLDs, separately or in combination, ever becoming a means by which ICANN or its successor could encroach upon the rights of ccTLDs.

3. To ensure the the policy-making authority for gTLDs (ICANN and its successors, if such authority should ever be transferred) adopt only community-consensus policy on the basis of bottom-up multistakeholder policy-making.

   [Aside: what do I mean by this?

   Such a model sees ICANN a the vehicle by which the community
   develops its policy, with ultimate policy 'sovereignty' conceptually
   and morally lying within the community consensus as expressed
   through ICANN community processes; this is as opposed to a model in
   which ICANN seen a having a separate, corporate view on policy,
   where ICANN consults the community but is able and entitled to
   override it.]

Moreover, this model must be based on enduring commitment to certain fundamental substantive principles as the paramount objectives of such
policy: these principles include maintaining the open Internet, enabling interoperability and preserving universal reachability, and maintaining the security, stability and resilience of the DNS. In particular, the model must provide a means to ensure that ICANN cannot exploit its control of the DNS root through IANA, and authority over gTLDs, either to encroach upon ccTLDs nor to encroach upon other areas policy. The latter is a particular concern to me, as registrant contracts are essentially contracts of adhesion and would present an unconstrained ICANN with a ready means to regulate registrants and the end-users of their services in areas far outside the scope of DNS.




Please look indulgently on the precise wording I have used above; this isn't a prepared statement. But I think the above conveys the essential concept I am trying to get to across when I say that any proposal to the NTIA that fails to set out, in a convincing manner, how each of these three core objectives should be maintained, in an enduring fashion, when NTIA is no longer able to step in to provide exogenous corrective action, ought to be rejected by the community, and by NTIA.

This Cross-Community Working Group has declared that its scope is the first area and, for the avoidance of doubt, I am reasonably content with how it has gone about delivering against that objective. I don't think the current proposal is anything like ready or finished (several people have given detailed questions that deserve an answer, and I would draw particular attention to Matthew Shears' very thoughtful list of questions). I also worry that we are valuing the timetable too highly, and allowing that to compromise the thoroughness of discussions. For example, I am not at all persuaded by suggestions I have heard so far that a legal entity to act as a contract counter-party can be dispensed with - but I am conscious that the interventions on this point from ALAC reps may be driven by entirely legitimate and credible underlying concerns that can and should be addressed or mitigated in the proposal.
A more measured, deliberative process might draw these underlying points out and uncover mitigations, resulting in a stronger consensus and an improved proposal. Nonetheless, as it relates to the first of the three areas I set out above, I believe this CCWG is on the right lines and I am hopeful of an end result that would deserve support with regard to this element.

Even though this CCWG has stated that its scope is limited to this first area, it has chosen also to address the issues contained in the second of the three areas I set out, the preservation of the independence and authority of ccTLD operators. I do not see a valid conceptual reason for addressing this and not the third, but the ccTLD reps have managed to press their key priorities here successfully. Since I support them in this, I am content that the final proposal is likely to address this second area appropriately.

The third area is the most difficult one. Since a separate CCWG on Accountability has been convened (even though it has not yet started work), all matters that even remotely touch upon its purview have been declared out of scope for this CCWG.

I am content that CCWG-Accountability Workstream 1 should have the job of defining the matters in this third area, and deciding what should be done about them. However, even if so, what is the mechanism for making those findings part of the eventual transition proposal that NTIA will receive on behalf of the entire community?

This raises a basic question about the duty of this CCWG and the expectations of the ICG. I see two possibilities, and really only two:

i) The duty of this CCWG is to prepare that part of the transition proposal that NTIA has requested related to DNS related issues. The role of the ICG will be limited to combining this with the proposals from the numbers and protocol communities, and to establish that each of us has indeed built a community consensus for our proposals. However the document from this CCWG is intended to be complete answer in respect of the naming community, and ICG is not expecting to amend it to incorporate other DNS-related proposals relating to issues that we have chosen to ignore.

ii) The duty of this CCWG is only to prepare for ICG that element of a transition proposal that relates to IANA operational functions, leaving CCWG-Accountability not only to develop those elements to relating to ICANN accountability, but also to write to ICG with its own report on Workstream 1. Under this possibility, ICG would never receive a complete proposal for DNS-related issues from anybody, and would be responsible for combining the recommendations of CCWG-Stewardship and CCWG-Accountability into a unified proposal for naming-related issues.

These two possibilities seem to me to be the only ways in which ICG can present a single unified proposal to NTIA, as NTIA has requested.
Moreover, I believe that the first approach is greatly to be preferred as closer to the request and expectations of ICG, and most likely to enable this CCWG and CCWG-Accountability to liaise and coordinate so as to avoid the ICG inadvertently damage the proposals made by each, as would be a risk if ICG is forced to take responsibility for integrating the two proposals, rather that us taking that responsibility for ourselves.

Allow me, if you will, to elaborate on this issue of integration of our work with that of CCWG-Accountability by posing a practical question.

One of the scenarios CCWG-Accountability Workstream 1 is likely to address is the case of what happens should the ICANN Board, unilaterally and without community support, decide to dissolve or systematically ignore gNSO Council, and take instructions for gTLD policy largely or exclusively from someone else (for example the GAC).

What might CCWG-Accountability want to put in place to preclude such an undesirable event?

I suspect that CCWG-Accountability will decide (and intend to attempt persuade it, when the time comes) that two measures need to be established to cover this scenario:

i) ICANN needs to be made subject to a binding commitment of principle to the multistakeholder model for bottom-up community consensus policy.
This is needed to prevent the Board being able to say in the future "We believe that it is correct and justified that DNS policy ought to be determined by governments, not by a multistakeholder process". An exogenous policy commitment would take that question of principle out of their hands, and make it possible to be decide that in rejecting that principle they are not exercising the proper authority with which the Board has been entrusted, but reneging on its commitments;

and secondly

ii) An effective mechanism needs to be created for enforcing the binding commitments into which the Board has entered.

Assuming I am correct as to what CCWG-Accountability might want, what might constitute an effective mechanism for enforcement? I think it very likely that CCWG-Accountability will reach the same conclusion as this group (not least *because* it is the decision of this group, and there will be a desire to align with it).

So if CCWG-Stewardship, notwithstanding your own current misgivings, finally settles on the PRT+ContractCo mechanism for establishing and enforcing ICANN's obligations as IANA Functions Operator, CCWG-Accountability is likely to want to employ the same mechanism for establishing and enforcing ICANN's obligations as gTLD policy maker (and had this group not already chosen to protect the ccTLDs to the satisfaction of their reps, I am sure CCWG-Accountability would also propose similar requirements to meet the same ends).

   (BTW, if there were such an external mechanism, it would be necessary
   to design it so as to avoid setting up a recursive chain of
   authority. This would be part of CCWG-Accountability's job in
   designing it; I do believe it is possible).

I realise I am piling supposition upon supposition here, but they are not very strained. When CCWG-Accountability sees that CCWG-Stewardship proposes an external body to set and enforce requirements on how the IANA functions are carried out, it is surely very likely that it will want an external body to set and enforce essential requirements to maintain ICANN's fundamental accountability to the community.

If I am correct and that is indeed what CCWG-Accountability ends up proposing, how would *their* proposal and *our* proposal be combined?
They clearly relate to each other.

Should the PRT take on both responsibility for setting the new IANA functions contract (in our current draft, newly stripped of requirements relating to ICANN qua gTLD policy-maker) and for setting and enforcing ICANN's obligations as policy-maker? NTIA combined both elements in the same contract, so this is far from unexpected. If so, CCWG-Accountability would effectively be modifying our proposal, by taking the organs we designed and extending their functions. Would that not suggest some coordination between us and CCWG-Accountability would be sensible, rather than leaving it to ICG (or even to NTIA) to try to interpret the our respective proposals and provide for their consequences?

On the other hand, surely it is obvious that if CCWG-Accountability proposes a *different* contract counter-party be created to deal with ICANN accountability issues, then that might create new risks, at least in the event that that counter-party ever put ICANN's role as convenor and vehicle for building community-consensus policy out for open-bid RFP? These risks might not be limited to policy, but raise the possibility of more operational issues with (e.g.) stability - risks whose mitigation is absolutely the declared concern of this CCWG. Again, it seems some coordination between the two groups would be indicated.

Do you really want to leave questions like this to be resolved by ICG alone? Surely, if the combined result is to be successful and supportable, it would be better if we coordinate with CCWG-Accountability ourselves?

If you agree, then I suggest it is this CCWG's responsibility to integrate their recommendations with its own, and present ICG with a combined proposal that it might find has broad support. Hence my proposal that placeholder text be inserted today, to make this intention clear.

That is a rather long-winded answer to your question, for which I apologise. I realise it is built on some suppositions and assumptions, and I have tried to be explicit about them, so that you may easily examine the assumptions I have made. Nonethless, I think it unwise for this CCWG to operate in a vacuum - it behooves us to think about how our work fits into the bigger picture, and to seek to make our output contribute towards the combined whole.

So for now, I will be satisfied with placeholder text in this report, text that is intended to be replaced with recommendations from CCWG-Accountability. When they have provided such a replacement, I think it will also be our responsibility to ensure our final report is integrated into a coherent whole, such that our recommendtions and those from CCWG-Accountability could be implemented, without either undermining the other.

Finally, I will call attention to one other assumption I have made, upon which all of the above rests. If anyone is of the view that NTIA transition does not raise any vital issues of accountability for ICANN in its policy-making role, and that the development of ICANN accountability mechanisms can continue through ICANN's own internal structures without any need to place them on the critical path for NTIA transition, then that person would be in disagreement with a core axiom for my argument, and everything I have written above will fall away. In response, all I can say is the community view agrees with me: when ICANN originally proposed to treat accountability as a separate issue there was an outcry in the community. This was only satisfied when CCWG-Accountability was told to create Workstream 1 specifically for issues that *had* to be addressed before or as part of NTIA transition.
I take the creation and definition of that Workstream as a community consensus decision. Somehow or other, the NTIA must be presented with a proposal that includes proposals to address issues from Workstream 1. I think that is beyond dispute.

For the reasons I have given, I believe it would be wise for us to include those Workstream 1 proposals in the report of this CCWG, to form part of a combined draft proposal on behalf of the naming community for transition of NTIA's role in relationship to DNS to multistakeholder stewardship.

To make it clear that that is our intention, let us include placeholder text today.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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