[CWG-Stewardship] FW: Draft Provisions for PTI Bylaws/Contract-Annex C (Sections 7 and 8)

[Martin Boyle]

Hi Yuko, hi all,

Unfortunately I am unlikely to be able to join Thursday's call given a long-established prior commitment.

I have a serious issue with 2 on page 1.  The footnote refers to 3.8.2 (isn't this C.8.2?) which is all about policies and procedures developed by the relevant entities.  The wording as it stands changes the "relevant entities" to cc & gTLDs.

C.8.2 specifically relates to the policies and processes and the performance of the IANA functions.  I would see this much more to do with changes to the architectural and operational process environments - those things for which RZERC is being established.  The first item covers policy on decision-making on IANA-related changes.  2. introduces a new criterion.  Incidentally, I would also note that C.8.2 doesn't figure in Annex E of the CWG proposal.

As it stands, 2. leaves the PTI exposed to a registry refusing to agree to a change.  For example, in the case of a gTLD, a registry that has lost its contract with ICANN because it failed to adhere to agreed GNSO policy would be able to block a change of registry.

I am more concerned with the ccTLD situation.  2. appears to give the PTI authority to make material changes in the policies and procedures developed by any ccTLD registry ... with the express written consent of the impacted registry, no matter what the legal circumstances.

A local decision to revoke a delegation that has force of law behind it and has been through due legal process might be blocked by the incumbent, but the PTI ends up as the man in the middle that has to make the decision.  That is potentially a risk for the PTI and could lead to a contradiction to Annex C 7.ii , to adhere to laws/processes, where a registry could block PTI's ability to follow national due process.

For me I am concerned about this subversion of the national (and in some cases there is a jurisdiction issue, so that might read "appropriate" national jurisdiction) process leading back to final recourse being in California, not nationally.

In addition the wording suggests that PTI could decide not to make requested changes even those that are requested by the registry.  Again no reference to the policy framework relevant for the registry concerned.

In summary as it stands I have serious concerns with the inclusion of 2. on page 1.  It does not seem to meet the requirements of Annex C and was not included in Annex E.  In addition the clause from the NTIA contract seems to have been modified so that it refers to national policy (which separately in the NTIA contract is excluded from the scope of the IANA functions operator's role).  On these grounds I have problems with the inclusion of this clause as drafted.

Thanks

Martin



-----Original Message-----
From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Yuko Green
Sent: 20 July 2016 19:08
To: cwg-stewardship at icann.org
Subject: [CWG-Stewardship] FW: Draft Provisions for PTI Bylaws/Contract-Annex C (Sections 7 and 8)

Dear all,

Per our last CWG meeting from 19 July, I am re-circulating the Annex C table for your review.

Regards,
Yuko Green

-----Original Message-----
From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Lise Fuhr
Sent: Monday, June 13, 2016 9:40 AM
To: cwg-stewardship at icann.org
Subject: [CWG-Stewardship] Draft Provisions for PTI Bylaws/Contract-Annex C (Sections 7 and 8)

Dear CWG,

As you might recall we have earlier discussed how to ensure that Annex C section 7 and 8, from the CWG Proposal, could be ensured in the PTI Bylaws and Contract. Sidley has sent the attached draft which we will cover at the next CWG call as part of the Client Committee update.

Best,
Jonathan and Lise