Re: [Ianaplan] [[e-mail]: Re: [CWG-Stewardship] Fwd: [CCWG-ACCT] Ominous update on the IANA transition]

[Bernard Aboba <[e-mail]>]

While it is understandable that ICANN legal might be concerned about its
freedom of action under the NTIA-ICANN contract,  there are more
transparent ways for them to have handled that concern - and that is what I
believe that much of the fuss is about.

As an example, when legal issues arose with respect to the .SUCKS TLD,
ICANN sent a letter of inquiry to the FTC in order to obtain some
clarification:
http://www.circleid.com/posts/20150415_icann_dot_wtf_ftc_oca_asked_whether_sucks_is_a_law_breaker_part_ii/

In this case, instead of responding with a refusal that left much available
to interpretation, ICANN legal could have sent a letter of inquiry to
NTIA.  While this approach might have left us in much the same place with
respect to the proposed agreement (e.g. ICANN unable to sign), the level of
transparency would have been significantly improved.  For
example, the letter of inquiry could have laid out the concerns relating to
the proposed text, narrowing the opportunity for speculation about the
precise nature of the reservations.  If NTIA chose to respond, their
response could have provided clarification with respect to their
contractual concerns and/or conditions under which such an agreement could
be consummated.

Even if NTIA had chosen not to respond promptly or at all to such a letter
of inquiry, that would have constituted information for the communities,
and would have been more in keeping with a public, transparent process.

So in summary, even taking ICANN's legal concerns at face value, there were
more transparent and open ways for those concerns to have been expressed
and (potentially) clarified, ways that ICANN has shown itself quite capable
of pursuing in other circumstances.

Bernard Aboba
(speaking solely for myself)

On Fri, May 1, 2015 at 11:21 AM, Andrew Sullivan <[e-mail]>
wrote:

> Dear colleagues,
>
> Apparently a number of people read the mail I sent the other day on
> behalf of Jari, Tobias, and me, and got worked up about it.  Someone
> at ICANN saw that being-worked-up and replied on another list where I
> was encouraging people to read the actual text we wrote.  Here's
> something additional posted by a staff member of ICANN.  I thought it
> might be interesting to people here.
>
> Best regards,
>
> A (in this case in my own capacity)
>
> ----- Forwarded message from Theresa Swinehart <
> [e-mail]> -----
>
> Date: Fri, 1 May 2015 15:10:42 +0000
> From: Theresa Swinehart <[e-mail]>
> To: Andrew Sullivan <[e-mail]>
> CC: "[e-mail]" <[e-mail]>
> Subject: Re: [CWG-Stewardship] Fwd: [CCWG-ACCT] Ominous update on the IANA
>         transition
>
> Hi Andrew,
>
> Thank you for the statement, and agree it's an important piece to read. To
> add to this, we are raising concerns because suggested new text to the
> language raise a legal issue for us under the existing contract ICANN has
> with NTIA. This is hopefully temporary as the NTIA contract eventually
> expires. In fact, this case is an excellent example of a reason why the
> transition is so essential. We have no desire to affect the results of the
> community processes. We also believe that it would be more appropriate to
> maintain the status quo until the conclusion of the transition process to
> not pre-empt or create a perception of pre-empting any of the community
> consensus process around any areas in the finalization of the transition.
>
> Theresa
>
>
>
>
> On 4/30/15 3:51 PM, "Andrew Sullivan" <[e-mail]> wrote:
>
> >Hi,
> >
> >I encourage those who are interested in this go and read the message
> >exactly as it was posted, and not a summary from someone else.  The
> >message is at
> >http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html.
> >It's not long.  I encourage people to read it carefully, because it
> >was written that way.  I shall not say more than I said in that
> >message, however.
> >
> >Best regards,
> >
> >A
> >
> >On Thu, Apr 30, 2015 at 10:29:30AM -0400, Greg Shatan wrote:
> >> I am forwarding the email below, as it will be of interest to this
> >>group as
> >> well.  It would also be of interest to hear the views of those who are
> >> involved in the process (to the extent that is possible given ongoing
> >> negotiations).
> >>
> >> Greg
> >> ---------- Forwarded message ----------
> >> From: Edward Morris <[e-mail]>
> >> Date: Thu, Apr 30, 2015 at 10:14 AM
> >> Subject: [CCWG-ACCT] Ominous update on the IANA transition
> >> To: Accountability Cross Community
> >><[e-mail]
> >> >
> >>
> >>
> >> Hi,
> >>
> >> I think this post on the NCSG list by Dr. Mueller might be of interest
> >>to
> >> those of us working on Accountability.
> >>
> >> Best,
> >>
> >> Ed Morris
> >>
> >>
> >>
> >> ---------- Forwarded message ----------
> >> From: Milton L Mueller <[e-mail]>
> >> Date: Thu, Apr 30, 2015 at 2:27 PM
> >> Subject: Ominous update on the IANA transition
> >> To: [e-mail]
> >>
> >>
> >>
> >>
> >> Dear NCSG:
> >>
> >> It¹s now official: ICANN doesn¹t even want to let the IETF have a
> >>choice of
> >> its IANA functions operator.
> >>
> >>
> >>
> >> Those of you who read my blog post on ICANN¹s interactions with the
> >>numbers
> >> community
> >>
> >><
> http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functio
> >>ns-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/>
> >> will already know that ICANN is refusing to accept the consensus of the
> >> numbers community by recognizing its contractual right to terminate its
> >> IANA functions operator agreement with ICANN. In that blog, I referred
> >>to
> >> second-hand reports that IETF was encountering similar problems with
> >>ICANN.
> >> Those reports are now public; the chairs of the IETF, IAB and IETF
> >> Administrative Oversight Committee have sent a letter to their community
> >> <http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html>
> >> noting that ICANN is refusing to renew their supplemental service level
> >> agreement because it includes new provisions designed to facilitate
> >>change
> >> in IANA functions operators should IETF become dissatisfied with ICANN.
> >>
> >>
> >>
> >> These are truly shocking moves, because in effect ICANN¹s legal staff is
> >> telling both the numbers and the protocols communities that they will
> >>not
> >> accept the proposals for the IANA transition that they have developed as
> >> part of the IANA Stewardship Coordination Group (ICG) process. In both
> >> cases, the proposals were consensus proposals within the affected
> >> communities, and were approved by the ICG as complete and conformant to
> >>the
> >> NTIA criteria. Thus, ICANN is in effect usurping the entire process,
> >> setting itself (rather than ICG and NTIA) as the arbiter of what is an
> >> acceptable transition proposal.
> >>
> >>
> >>
> >> The key point of conflict here seems to be the issue of whether ICANN
> >>will
> >> have a permanent monopoly on the provision of IANA functions, or whether
> >> each of the affected communities ­ names, numbers and protocols ­ will
> >>have
> >> the right to choose the operator of their global registries.
> >>Separability
> >> is explicitly recognized by the Cross community working group on Names
> >>as a
> >> principle to guide the transition, and was also listed as a requirement
> >>by
> >> the CRISP team. And the IETF has had an agreement with ICANN giving them
> >> separability since 2000 (RFC 2860
> >><https://tools.ietf.org/html/rfc2860>).
> >> Yet despite the wishes of the community, ICANN seems to insist on a
> >> monopoly and seems to be exploiting the transition process to get one.
> >>
> >>
> >>
> >> Of course, a severable contract for the IANA functions is the most
> >> effective and important form of accountability. If the users of IANA are
> >> locked in to a single provider, it is more difficult to keep the IANA
> >> responsive, efficient and accountable. Given the implications of these
> >> actions for the accountability CCWG, I hope someone on that list will
> >> forward this message to their list, if someone has not noted this event
> >> already.
> >>
> >>
> >>
> >> Milton L Mueller
> >>
> >> Laura J. and L. Douglas Meredith Professor
> >>
> >> Syracuse University School of Information Studies
> >>
> >> http://faculty.ischool.syr.edu/mueller/
> >>
> >> Internet Governance Project
> >>
> >> http://internetgovernance.org
> >>
> >>
> >>
> >>
> >> _______________________________________________
> >> Accountability-Cross-Community mailing list
> >> [e-mail]
> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> >
> >> _______________________________________________
> >> CWG-Stewardship mailing list
> >> [e-mail]
> >> https://mm.icann.org/mailman/listinfo/cwg-stewardship
> >
> >
> >--
> >Andrew Sullivan
> >[e-mail]
> >_______________________________________________
> >CWG-Stewardship mailing list
> >[e-mail]
> >https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
>
>
> ----- End forwarded message -----
>
> --
> Andrew Sullivan
> [e-mail]
>
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