Re: [Ianaplan] CWG draft and its impact on the IETF

[Milton L Mueller <[e-mail]>]

> -----Original Message-----
> I've been mulling over the implications of this. Either PTI will be controlled
> by ICANN or it won't. If it *is* effectively controlled by ICANN, the IETF can
> sit back and relax until our SLA is no longer met, in which case we go to Plan
> B (i.e. no change in the state that has existed for 15 years).
> 
> If PTI is *not* effectively controlled by ICANN, we are straight into Plan B:
> giving notice to ICANN and bidding out a protocol parameter services
> contract, with PTI as an obvious bidder, hopefully at zero cost. (I would
> seriously expect several zero- cost bids to show up.)

Given current and past history, I am surprised that you find control by ICANN, as opposed to control by a more focused and independent PTI board that could, e.g., contain members from ICANN, ASO and IETF, so comfortable and secure. (Remember this would be a "new" ICANN unsupervised by NTIA). But if you really feel that way and have considered all the ramifications of various governance models for PTI, then by all means file comments in the proceeding saying so. That would be relevant input, assuming you had good reasons for your preference.

> What does 'effectively controlled' mean? I think it's an empirical question. As
> a counter-example, Ports of Auckland is wholly owned by Auckland Council
> Investments Limited, itself owned by the Auckland Council. But Ports of
> Auckland prefers to ignore the wishes of the community* that elected
> Auckland Council when it suits their commercial interests. This is a direct
> result of the transition from the port being in public ownership to being
> semi-privatized.

That is one of the reasons many of us favor incorporating PTI as a California Nonprofit Public Benefit Corp. 
The law under which PBCs are incorporated contain a lot of protections against commercial expropriation.  You can find discussion of this issue here: http://www.internetgovernance.org/2015/05/18/why-the-post-transition-iana-should-be-a-nonprofit-public-benefit-corporation/

In terms of what "control" means, there are various options on the table. A PTI incorporated as a PBC with a board the majority of which is not appointed by ICANN is the most independent option. A PTI inc as a PBC with a board appointed by ICANN but the selections governed by preset rules (e.g., you must appoint someone from IETF, someone from ASO, someone from names) is a slightly less independent option. A PTI with a so-called "insider" board, directly appointed by ICANN, including just ICANN staff members, is not independent at all. A PTI incorporated as a Delaware LLC is the least independent and the most susceptible to control and manipulation by ICANN unless strong protections are negotiated into the management agreement.