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

[Alan Greenberg]

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

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). 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. Contract Co. will not.

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.

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?

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? 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)? 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).

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

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. 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. 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??).

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.

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)?

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?

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.

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).

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.

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.

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.

Alternative

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

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.
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