Re: [Ianaplan] A draft for your review

["Richard Hill" <[e-mail]>]

Dear Brian,

The IANA Functions contract between NTIA and ICANN is not an ordinary contract.  In reality, it is delegation of authority and a mandate from NTIA to ICANN.

Recall the history: this contract was established pursuant to the 1998 NTIA Statement of Policy on the Management of Internet Names and Addresses, and the ICANN Bylaws were written to conform to that Statement of Policy.

Thus it appears clear to me that, in the ICANN Bylaws, the mission "to coordinate, at the overall level, the global Internet's systems of unique identifiers" must be understood as (gloss added in square brackets) "to coordinate [pursuant to a mandate from the US government], at the overall level, the global Internet's systems of unique identifiers".

Once you remove the IANA contract between NTIA and ICANN, that gloss is no longer relevant, so ICANN's mission becomes "to coordinate at the overall level", meaning that ICANN is the ultimate authority.

Inded, if you reread the Statement of Policy (more commonly called the White Paper) it is clear that its intent was to transfer the ultimate authority to the "new corporation", which new corporatio is of course ICANN.

NTIA's recent announcement on the transition states "Transitioning NTIA out of its role marks the final phase of the privatization of the DNS as outlined by the U.S. Government in 1997."  So the intent expressed in the White Paper must be taken into account when intepreting the ICANN Bylaws.

If they are not changed, then, in my view, ICANN will have no choice but to consider that it has ultimate authority over the global Internet's systems of unique identifiers, which of course includes the protocol parameters.

I note that Andrew Sullivan disagrees with my interpretation.

Best,
Richard

> -----Original Message-----
> From: Brian E Carpenter [mailto:[e-mail]]
> Sent: mardi, 2. septembre 2014 00:42
> To: [e-mail]
> Cc: [e-mail]
> Subject: Re: [Ianaplan] A draft for your review
> 
> 
> On 02/09/2014 03:22, Richard Hill wrote:
> ...
> 
> > Yes, but, but thus far there has been a contract between NTIA 
> and ICANN that clearly had precedence over the ICANN bylaws.  
> 
> IANAL, but I find it very hard to believe that a contract can have
> precedence over the by-laws of a corporation. At the least it suggests
> a serious failure of due diligence before signing the contract.
> 
>    Brian
>