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

Thu Dec 11 11:35:50 UTC 2014

Hello all,

my comments in-line, responding both to Milton's and Greg's points:

On 11/12/2014 07:46, Greg Shatan wrote:
> My further responses are inline.
>
> Greg
>
>
>
> On Wed, Dec 10, 2014 at 9:43 PM, Alan Greenberg
> <alan.greenberg at mcgill.ca <mailto: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>
>>     [mailto:cwg-stewardship-bounces at icann.org
>>     <mailto: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.

OCL: I am not sure that the threat of separation has any teeth if the
Contract Co. is as much an empty shell as you make it out to be. If
Contract Co. is instructed by the MRT to end the contract with the
current IANA functions operator, ICANN, how will it be able to sustain
any legal challenge from ICANN. You cannot enter litigation without a
significant financial backing. In the case of a contract severance,
there will be no IANA functions operator to fund the MRT or the Contract
Co. defense.

OCL: The ALAC's proposal rests on strong accountability mechanisms that
would not let the current IANA functions operator to act contrary to the
public interest, hence the emphasis that the Accountability CCWG needs
to make some serious proposals - and hence the tragedy that the
accountability process has started so late. We do not dispute the need
for an MRT - hence if the MRT decides to allocate the contract to
another entity than ICANN, bearing in mind the strong accountability
mechanisms that will be in place at ICANN, processes will be in place to
ensure an amicable transfer.

>
>
>
>>     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..

OCL: The composition of the MRT is not just a mundane implementation
detail. It is at the core of the balancing of stakeholder interests. We
really need to get all the details right for this:
- what the balance/composition of the stakeholders represented will be
- how the selection of these stakeholder representatives will take place
- whether there are term limits for these stakeholder representatives
- what accountability mechanisms are there for these stakeholders to
indeed act in the best interests of their stakeholder group
- how they relate back to their stakeholder groups

Without determining these details of this composition, I reiterate that
we might be building a five legged sheep, a MRT that could go rogue; a
disenfranchised MRT; a MRT that has no teeth nor means to defend itself.

Also - what is the legal status of the MRT? Will it also be a not for
profit company? If so, will it have directors? What internal
accountability mechanisms will it have? These details will make all the
difference to the workability of the scenario that's currently suggested
by the CWG.

>
>
>>     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.
>

Could the GAC appoint representatives to entirely independent
organisations/bodies and yet retain some kind of "liaison" link with
these representatives?

>>     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.

I agree. But it needs to be realistically workable. If separation means
the MRT and the Contract Co. end up with no funding whatsoever then the
separability on paper has no reality. Accountability mechanisms, on the
other hand, have no weakness: if a decision is not made in-line with
what's on paper, then mechanisms should be in place to automatically
kick in.

Kind regards,

Olivier
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