[CWG-Stewardship] Strickling Remarks from 4 December re IANA Transition and Accountability

[Greg Shatan]

My further responses are inline.

Greg



On Wed, Dec 10, 2014 at 9:43 PM, Alan Greenberg <alan.greenberg at mcgill.ca>
wrote:

>  At 10/12/2014 07:12 PM, Milton L Mueller wrote:
>
>
> *From:* cwg-stewardship-bounces at icann.org [
> mailto:cwg-stewardship-bounces at icann.org
> <cwg-stewardship-bounces at icann.org>] *On Behalf Of *Olivier MJ
> Crepin-Leblond
>
> I would say that this has already been demonstrated in the making up of
> the ICG and the current CWG, both of which include non ICANN participants
> from the global multistakeholder community.
>
> MM: Hello Olivier. Both the ICG and this CWG have been empowered by an
> external entity – the NTIA. It was the NTIA that kicked off the process by
> signaling its willingness to let go. It was NTIA that told ICANN to convene
> but not control the process. It was the NTIA that set the parameters and
> basic criteria a transition proposal had to meet. It is the NTIA, and the
> US government more broadly, that will ultimately determine whether the
> proposals we develop will be implemented. To look at these processes as
> outgrowths of processes internal to ICANN is to be fundamentally out of
> touch with what is going on here. As Jordan Carter pointed out in a message
> a few minutes ago, given the concessions we had to wring out of ICANN to
> make these processes as independent as they are, it is evident that these
> examples you hold up would have been very different had they been internal
> to ICANN.
>
>
> You seem to ignore the powerful draw of keeping IANA without the Contract
> Co. complexity, cost and potential for instability. Those are strong reason
> for ICANN to adapt.
>

GSS: Having spent some time thinking through the consequences of an
"internal to ICANN" concept, I think it is just as complex, if not more so,
than the CWG draft proposal.  Further, I think that the "potential for
instability" is the hallmark of effective accountability.  If heads won't
roll, then the chances that oversight and accountability will be effective
drop dramatically.

>
>
>
> Similarly, I would point out that a totally independent MRT that does not
> make use of ICANN's existing structures as a convenor would be missing a
> coordinated Governmental involvement. Indeed, only ICANN has the ability to
> make use of its members to relate back to the GAC and for the GAC to
> express points. A totally independent MRT would have individual governments
> speaking. Of course, individual governments were able to speak outside of
> ICANN at, say ITU meetings or at NetMundial - but they were not restricted
> to a handful of seats for the whole world.
>
> MM: The MRT _*will*_ make use of ICANN’s institutionalized
> representational structures. No one who has thought seriously about the
> composition of the MRT has proposed anything different from that. The GNSO
> SGs will be putting people on to the MRT, so will the ccNSO, so will the
> GAC, so will SSAC, so will ALAC. So will entities outside of ICANN. But it
> will be independent of ICANN legally, which as Greg explained is essential.
>
>
> But we have not yet explored exactly who will be convening this body, or
> what exact structure it has. Greg has explained that for a body to have
> contractual terms which it will be compelled to honour (whether by contract
> or MoU), it has to have some formal status, but this undefined body will
> have a very complex relationship with Contract Co and I have seen no
> discussion about how that will happen.
>

GSS: I'm not sure I understand your concern about a "convenor" for the
MRT.  It would be put in place as a necessary part of the IANA transition
plan accepted by the NTIA and the global multistakeholder community (as
represented by the ICG).  I don't think it needs a formal "convenor" beyond
that.  As for the structure, we have discussed that it will be a broadly
multistakeholder group, with members formally selected by and acting as
representatives of their communities.  Getting the details of this right is
not a small task, but it is an implementation-level task.  The policy-level
concept is clear.  Frankly, I don't think the relationship between the MRT
and Contract Co. is all that complex.  The fundamentals of that
relationship can be clearly expressed in the MRT's charter and in the
articles of incorporation and bylaws of Contract Co..

>
>
> MM: As a sideline, I am a bit disturbed by the special emphasis you are
> placing on governmental involvement. Outside of their jurisdiction,
> Governments’ only claim to involvement in ICANN is as one of many voices in
> the policy development process. I do hope you, and all ALAC members,
> understand that the IANA functions contractor is not a policy making
> institution, nor is it supposed to be a vehicle for circumventing or
> vetoing policy.
>
>
> Are you saying that in this case, a MS body will not have any government
> involvement.
>
> I am more than a bit troubled that now "multistakeholder" means the
> multistakeholders that someone decide need to be involved, but not others.
>
> If that is indeed true, I would suggest that this be said VERY clearly and
> openly.
>
> GSS: I won't presume to speak for Milton, but reading all of this segment
> together, it's clear to me that he is not saying that the MRT will not have
> any government involvement.  Rather, I believe he is saying that the GAC
> will have representatives on the MRT who will participate on an equal
> footing with other stakeholders.  So, I think you are "troubled" here for
> no reason.
>
> MM: When it comes to the IANA functions, we do not need governments
> “speaking,” collectively or individually, about implementation. We need
> them in their role as ccTLD administrators, in which case they are just
> another IANA customer. Insofar as they are indirectly affected by the IANA
> functions, they are just another internet user stakeholder group – no
> different from or more important than noncommercial organizations or
> business users. There is no legitimate reason to afford governments a
> special collective voice in the MRT. Even in the terms of the Tunis Agenda,
> a document written by and for governments, IANA qualifies as “day to day
> technical and operational matters” and thus as something to be left to the
> private sector.
>
> At this stage, I could use exactly the same wording about the current CWG
> first draft, replacing "other than to be 'internal-to-ICANN" with "other
> than to be separable from ICANN".
>
> MM: The rationale for separability has been explained countless times. It
> is an accountability measure, a way of giving the community the most
> meaningful form of redress in case the functions are abused or not
> performed well. Moreover, the IANA functions have always been under a
> contractual relationship. The burden of proof is on those who would say
> IANA functions should be perpetually locked in to one corporation. And I
> completely agree with Greg on this question: we hear your discomfort with
> Contract Co but we have no idea what positive value you are seeking to
> advance by opposing it, other than to keep everything within ICANN.
>
>
> Yes, separability *IS* a method of forcing accountability. But it is not
> the ONLY such method.
>

GSS: It may not be the only method, but it is the ultimate method.  Like
other ultimate methods it should not be used lightly -- but it should be
available.

Greg

>
>
> Alan
>
>
> Clearly we have some work ahead of us to make either proposal, or a mix,
> workable.
>
> There will be and can be no mix; either ICANN owns IANA or it is
> contracted. I think there is work to be done on this plan, but have seen no
> serious challenges to its inherent workability. On the other hand, the
> workability of an internal to ICANN option is lying in a heap of rubble at
> the bottom of Greg’s last message.
>
>
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