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

[Milton L Mueller]

Phil,
I do think it would be nice if the CCWG on Accountability was further along, but I don't agree with your premise that this group cannot do anything because of that. In fact, the other group has to know basically what we are proposing as a future IANA structure before they can determine what kind of accountability measures have to be put into place before the transition can happen.

For example, the structure coming out of Frankfurt, despite some lack of detail, had very good accountability features. (By this I am referring to the contracting feature and the independent appeals process). Thus the CCWG on Accountability could have taken that as a starting point and said, "what do we need to add, if anything, before this structure is put into place?"

If we roll back to square one, as some of the opponents of strong accountability in ALAC wish to do, what exactly would the CCWG be able to do in their track one deliberations? They would indeed be working in a vacuum.

--MM

From: Phil Corwin [mailto:psc at vlaw-dc.com]
Sent: Saturday, November 29, 2014 12:03 PM
To: Olivier MJ Crepin-Leblond; cwg-stewardship at icann.org
Cc: Alan Greenberg; Milton L Mueller
Subject: RE: [CWG-Stewardship] My concerns with the draft proposal and an alternative option

Alan-thank you for sharing your thoughtful concerns - and thanks as well to Olivier, Milton, and others who have responded to it with equal thoughtfulness.

I salute the entire group, especially those who gathered in Frankfurt, for achieving the development of a remarkably detailed first draft for public comment in a very brief time - and yet, surveying this dialogue, I have to ask, is there a broad  consensus within the CWG for what is about to be posted on Monday? Because if there is not then the time should be taken to develop that full consensus, rather than put out for public comment something which seems to be generating the characteristics of drafter's remorse.

As Olivier notes: "The *tragedy* about the current status is that the Accountability CCWG track 1 has not started its work yet whilst the CWG on IANA Stewardship Transition is just about to declare its work complete. We have ended up with a carriage before the horses..." It has been clear from the start of this process that the IANA and Accountability tracks are to be linked and interdependent, yet you are putting out a draft without having a clue as to what will be proposed by the Accountability CCWG. That is because December 1 has been declared to be an immoveable date in order to get something to NTIA by early summer. But really, given that the Accountability CCWG has yet to begin its work, and will be dealing with issues of organizational accountability that are more complex and politically charged than the transition itself, what are the odds that it will have a final report and recommendations to NTIA by then? I am not saying it is impossible, just improbable.

I also take quite seriously Alan's observation that "Integrating these two approaches [that of this CWG with those of the RIRs and the IETF]  may be difficult."  That is an understatement, and points out that this CWG is preparing to issue a proposal without having any idea of whether it will readily mesh with what will be forthcoming from the more technical groups, ceding the power to integrate them as it deems fit to the ICG.

Haste makes waste, as the saying goes.

Other random thoughts spurred by this thread:


*        As an attorney I am quite comfortable with the concept of a Contract Co. as the accountability mechanism, while recognizing that there are many details yet to be filled in, which is the problem when you are trying to build an airplane while flying it. But I recognize that the alternatives broached by Alan and others may be worthy of exploration, even if to be eventually dismissed, in the process of achieving broad consensus. Again, for me the key question is whether there is sufficient consensus within the CWG to publish the present proposal on Monday. If there is not then the community should really not be asked to spend the considerable time required to comment upon it.

*        If there is to be a Contract Co. then the issue of its jurisdiction is less important than the choice of law provision in its contract with ICANN (or subsequent IANA functions operator), designating the laws under which any contract dispute will be decided (whether by arbitration or litigation). While I know others will disagree I think there is only one answer there - U.S. law. ICANN is and will still be at the time of the transition a US non-profit under CA law and all of its contracts with contracted parties are likewise enforced under US law, so why would you introduce the complication of a different body of law? Further, the US system for contract law enforcement is quite well developed and predictable. Plus, if you want to ensure inciting the new Congress against the transition and create a huge headache for NTIA go ahead and designate another national jurisdiction for enforcement; so far as I'm concerned that would be a political "poison pill". This CWG is about creating a transition proposal that NTIA can embrace, not for any debate on changing the legal locus for ICANN the organization.

*        As for the cost of funding Contract Co,. make ICANN pay for the privilege of administering the IANA functions as it is the keystone of its policymaking authority and it can well afford it with the funds coming in from new gTLD domain registrations and contention auctions. Unused funds can be placed by Contract Co. into a rainy day fund that can be used for litigation if necessary or for post-ICANN operation, if the contract should ever be taken away from it.

I hope those thoughts are of some helpfulness.

Best to all, Philip






Philip S. Corwin, Founding Principal
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From: 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
Sent: Saturday, November 29, 2014 4:40 AM
To: cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] My concerns with the draft proposal and an alternative option

Thank you for sharing your concerns, Alan. These are concerns which I also share.

In your paragraph about "Alternative", I believe that the alternative you propose is just one of several possible alternatives that do not require the creation of new corporations. A system of MoUs might also be considered, although I yet do not know how that would work. An IANA Supporting Organisation, perhaps? Uncooked suggestions from me which we should explore too.

The current proposal appears to de-link and separate the IANA function so much out of ICANN's realm that it would make the need for an ICANN Accountability track 1 moot. The *tragedy* about the current status is that the Accountability CCWG track 1 has not started its work yet whilst the CWG on IANA Stewardship Transition is just about to declare its work complete. We have ended up with a carriage before the horses and in a side conversation I had with ICANN Staff I am not even sure whether there is an understanding that the ICANN Accountability track should be closely linked to this proposal if we decide that ICANN will have an active part in this. With the IANA functions operator remaining ICANN for the time being, ICANN is an active part in this. So thinking the Accountability track 1 is parallel to the IANA Stewardship transition track and will only come together when the ICANN Board will join it with the report received from the ICG is again unworkable.

Finally, let me reiterate my concern that some have advocated "separability" as being fundamental to the proposal, over and beyond the concerns expressed by NTIA, ccTLD operators, the At-Large Community (we polled our WG and ALAC members about this) that operational stability and continuity was the most fundamental point to base our proposal on. Does that mean status quo for ICANN? Not necessarily - but again, let's please explore the different alternatives on the table.

Kindest regards,

Olivier
On 29/11/2014 06:23, Alan Greenberg 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. 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<http://en.wikipedia.org/wiki/Keystone_%28architecture>)] 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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