[governance] Re: [discuss] Roadmap for globalizing IANA

Fri Mar 7 11:00:17 EST 2014

On Fri, Mar 7, 2014 at 3:27 PM, Milton L Mueller <mueller at syr.edu> wrote:

> Right, Brenden, I agree that Mawaki has raised an important issue.
> We suggested, perhaps a bit too casually, that the contract between DNSA
> and ICANN might be renegotiated after a period.
> I think that was not fully thought out,

Right!...Not too early, but I guess not too late either.
It indeed didn't strike me as well thought out to even suggest that DNSA
would be in position to make the decision as to who gets the contract,
right after saying it only has a clerical (IANA functions) and a technical
(Root zone maintainer) role --regardless of scenarios such as the one Vinay
has come up with. And that was precisely basis for my question.

Either your proposal is missing some other entity with the authority to
award that contract or your proposed structure will have to be re-designed.
Once USG is taken out of the equation the main purpose of the new DNSA will
be to carry out decisions made by ICANN; I don't see how that makes both
independent entities _freely_ choosing to enter into such contract. Nor do
I see how DNSA can be said to be just clerical and technical while being in
position to decide who is going to be the policymakers whose decisions they
are meant to implement.

Mawaki

> because we don't want DNSA to be the principal and ICANN the agent, nor do
> we want ICANN to be the  principal and DNSA the agent. What we want is a
> stable agreement between two equal parties that is worked out once and kept
> in place indefinitely, unless something goes terribly wrong.
>
>
> -----Original Message-----
> From: Brenden Kuerbis [mailto:bkuerbis at gmail.com]
> Sent: Thursday, March 06, 2014 9:51 AM
> To: Mawaki Chango
> Cc: discuss at 1net.org; Milton L Mueller
> Subject: Re: [discuss] Roadmap for globalizing IANA
>
> Hi Mawaki,
>
> Thanks for reading the proposal and your questions.
>
> It's worth noting there is a world of difference between government
> contracting <http://www.law.cornell.edu/wex/government_contracts>, the
> situation we have currently, and private contracting <
> http://www.law.cornell.edu/wex/contract>, which we propose between a DNSA
> (registration authority) and ICANN (policy development authority).  E.g.,
> the former often contains mandatory clauses, e.g., unilateral rights to
> terminate or amend, while the conditions of the later are up to the parties
> to negotiate.  Of course, a contract would be enforceable by law, and
> jurisdiction necessarily identified.
>
> Given that, and to your point, we are not suggesting that the DNSA (nor
> ICANN) would be in a position to terminate the contract unilaterally.
> Rather, termination conditions would have be negotiated between the
> parties. Arguably, structurally separating the IANA function (specifically,
> root zone management) makes identifying those conditions easier. It could
> focus the negotiation on determining tangible (e.g., service levels),
> rather than subjective (e.g., is the institution multistakeholder enough),
> measures.
>
> Milton might have something to add, but thanks for helping us clarify that
> point.
>
>
> ---------------------------------------
> Brenden Kuerbis
>
>
> On Thu, Mar 6, 2014 at 7:39 AM, Mawaki Chango <kichango at gmail.com> wrote:
> > As it has been brought to my attention that my comments and question
> > were not clear enough to some, here is another way of stating my
> > concerns quoting from the original text (with a reiteration of my
> > comments in square brackets and caps).
> >
> > <quote>
> >
> > The DNSA would require a binding contract with ICANN regarding the
> > conditions under which
> >
> > it would agree to implement changes in the root zone or other
> > associated databases to reflect policies
> >
> > emerging from ICANN's policy development processes [WHO WILL BE THE
> > ENFORCER IN ODER TO MAKE SUCH CONTRACT BINDING?]. The contract should
> > ensure that the DNSA
> >
> > has no policy authority but merely implements valid requests for
> > additions or deletions emerging from
> >
> > ICANN's policy process [NOTED!]. DNSA would promise to abide by ICANN
> > policy directives on the
> >
> > condition that ICANN's policy decisions related to the root not be
> > used to impose requirements on
> >
> > registries, via registry agreements, to regulate content or otherwise
> > locally lawful behavior of registrants.
> >
> > The existence of this contract would provide the opportunity for
> > developing an additional accountability
> >
> > check on ICANN [HOW SO? AGAIN WHO IS THE AUTHORITY THAT WOULD MAKE
> > THIS SO-CALLED "ADDITIONAL ACCOUNTABILITY" EFFECTIVE?]. For example,
> > if the contract was not in perpetuity but was renewable every five
> >
> > years, diverse entities might compete to replace the existing ICANN as
> > the policy development
> >
> > authority [SO HERE IS THE CRUX: YOU SEEM TO BE SUGGESTING THAT ONE OF
> > THOSE PARTIES, THE DNSA, IS IN A POSITION TO AWARD THIS CONTRACT TO
> > THE OTHER, AND SO IT MIGHT AT SOME POINT WITHDRAW IT FROM THAT OTHER
> > PARTY AND AWARD IT TO ANOTHER -- NOT UNLIKE THE POSITION THE USG WAS
> > IN WITH ICANN. DO YOU UNDERSTAND THE TENSION? AT THE VERY LEAST THERE
> > IS A GAP IN YOUR EXPLAINING REGARDING THE FULL MECHANISMS OF THIS
> > CONTRACTING, BUT YOU CAN'T JUST SAY DNSA HAS NO POLICY AUTHORITY WHILE
> > IMPLYING IT MIGHT TAKE THE CONTRACT AWAY FROM ICANN (SINCE YOU HAVEN'T
> > EXPLAINED WHERE ELSE THE AUTHORITY FOR DOING THAT WOULD LIE IN THAT
> > RELATIONSHIP OR GOVERNANCE STRUCTURE.] As for the DNSA, as a private
> > association of incumbent registries, any attempt by it to
> >
> > manipulate root zone management to thwart competition or discriminate
> > against eligible members would
> >
> > be easily challenged by competition law authorities in Europe, the
> > U.S., or elsewhere
> >
> > </quote>
> >
> >
> >
> > =====================================
> > Mawaki Chango, PhD
> > Founder and CEO
> > DIGILEXIS Consulting
> >
> > m.chango at digilexis.com | http://www.digilexis.com
> > Twitter: @digilexis | @dig_mawaki | Skype: digilexis
> > ======================================
> >
> >
> >
> > On Wed, Mar 5, 2014 at 8:59 AM, Mawaki Chango <kichango at gmail.com>
> wrote:
> >>
> >> Milton,
> >>
> >>
> >> [Note: Sorry for coming late in this conversation and yet not reading
> >> all the previous comments and answers due to limited connection. So I
> >> am posting the following after reading the paper and drafting this
> >> off line. Apologies for any unintentional repetition.]
> >>
> >>
> >> Thank you and Brenden for putting together this innovative attempt to
> >> solving the challenges of the evolving institutional field for
> >> Internet governance, and for sharing it. I have two points about your
> proposal.
> >>
> >>
> >> First, it is not clear to me how combining the IANA functions (which
> >> your proposal define as clerical) with the Root Zone Maintainer
> >> functions (which I would think are technical, with no more decision
> >> making power than the IANA functions) in a new entity provides that
> >> entity with the authority you seem to be giving it.
> >>
> >> Indeed, it sounds like you're proposing to end the _political_
> >> oversight from USG by replacing it with the industry (DNSA)
> >> oversight. You say the existence of a contract between ICANN and the
> >> DNSA provides check and balance to ICANN and that other entities may
> >> even compete to replace ICANN if that contract were to (as it could)
> >> be made renewable every 5 years for instance, etc. In other words,
> >> this contract doesn't seem like a contract between peer organizations
> >> with each just having specific different roles toward the other, but
> >> a contract between a principal and an agent, or in any case between
> >> an entity that has (a higher) authority over the other since the
> >> former can put an end to the raison d'etre of the latter and give it
> away to a competitor.
> >>
> >>
> >> While I understand the incentive-based rationale for the membership
> >> of the DNSA, I fail to see where you make the case for such larger
> >> authority as you attribute to it, again merely by combining the IANA
> >> functions with the Root Zone Maintainer functions. What is the source
> >> of the DNSA authority which makes it competent to exercise an
> >> oversight that matches the previous political oversight (since removing
> the term "political" from "oversight"
> >> doesn't seem to narrow it to only the clerical and technical roles
> >> DNSA is supposed to carry out in the new governance structure) and
> >> competent to decide to grant or not to grant ICANN its contract?
> >>
> >>
> >> I think clarifying this will also help resolve the question as to
> >> whether political considerations (in the larger sense of political)
> >> need to be brought to bear in deciding who should be part of the DNSA
> >> - which can be a decisive factor for the success or failure of this
> proposal.
> >>
> >>
> >> My second point is much shorter and concerns your reference to a
> >> treaty, at last twice. I don't seem to find anywhere in the text an
> >> explanation about what the purpose of a treaty would be within the
> >> framework of this proposal. Would you mind elaborate on that?
> >>
> >>
> >> Thanks,
> >>
> >>
> >> Mawaki
> >>
> >>
> >> =====================================
> >> Mawaki Chango, PhD
> >> Founder and CEO
> >> DIGILEXIS Consulting
> >>
> >> m.chango at digilexis.com | http://www.digilexis.com
> >> Twitter: @digilexis | @dig_mawaki | Skype: digilexis
> >> ======================================
> >>
> >>
> >>
> >> On Wed, Mar 5, 2014 at 6:52 AM, Adam Peake <ajp at glocom.ac.jp> wrote:
> >>>
> >>>
> >>> On Mar 5, 2014, at 2:57 AM, Shatan, Gregory S. wrote:
> >>>
> >>> > Adam:
> >>> >
> >>> > Don't worry, I haven't dismissed the proposal out of hand.  I'm
> >>> > still chewing on it.
> >>> >
> >>> > You mention the concern about "predictable and reliable service"
> >>> > -- do you know of any instances where the current set-up has
> >>> > failed to provide that?
> >>> >
> >>>
> >>>
> >>> For a period of about 12 months before David Conrad joined as IANA
> >>> General Manager in 2005 I understand IANA was not working well.
> >>> David fixed things.  David or ccTLD managers on this list could
> >>> explain and clarify/correct my clumsy words.  IANA now has another
> >>> very capable manager, Elise Gerich.  But yes, I believe highly
> unreliable service for a while.
> >>> Not quite the current set-up but within the general current
> arrangement.
> >>>
> >>>
> >>> > I think the point about diversity of registries is an important one.
> >>> > In addition to those you mention, there are the ".brand"
> >>> > registries as well, who would provide yet another voice.  (I
> >>> > assume these would be included, even though they are not mentioned
> >>> > specifically in the proposal.  To the extent these are "single
> >>> > registrant" gTLDs, the "weighting" issue is interesting.  (Of
> >>> > course, there may be non-.brand single registrant TLDs as well (I
> >>> > think I saw a couple of applications where the users were not
> >>> > really "registrants" of SLDs ).)
> >>> >
> >>>
> >>>
> >>> Diversity can be a great protector: interests and motivations may
> >>> not align, etc.
> >>>
> >>> Adam
> >>>
> >>>
> >>>
> >>>
> >>> > Greg
> >>> >
> >>> > -----Original Message-----
> >>> > From: Adam Peake [mailto:ajp at glocom.ac.jp]
> >>> > Sent: Tuesday, March 04, 2014 12:32 PM
> >>> > To: Shatan, Gregory S.
> >>> > Cc: 'joseph alhadeff'; discuss at 1net.org
> >>> > Subject: Re: [discuss] Roadmap for globalizing IANA
> >>> >
> >>> >
> >>> > Hi Greg,
> >>> >
> >>> > On Mar 5, 2014, at 1:49 AM, Shatan, Gregory S. wrote:
> >>> >
> >>> >>
> >>> >> The popular term for this might be "the fox guarding the henhouse."
> >>> >> Of course, if it is merely "operational," then perhaps the
> >>> >> concern is overblown.  But if these functions are merely
> >>> >> operational, why not just leave them at ICANN?
> >>> >>
> >>> >
> >>> >
> >>> > Not sure about "fox guarding the henhouse"...  These functions are
> >>> > essential to the registries' business.  As Milton keeps reminding
> >>> > us, it's operational, they need predictable and reliable service.
> >>> >
> >>> > The diversity of registries is quite positive, very different
> >>> > business models (from com to new community tlds), different
> >>> > stakeholders and particularly sponsoring entities (for profit,
> >>> > ccTLD, government, IGO, NGO), geographic diversity (though even
> >>> > with around 25% ccTLD not as balanced as we'd hope), even language.
> >>> >
> >>> > I think it's worth looking at the merits of the proposal.
> >>> >
> >>> > Best,
> >>> >
> >>> > Adam
> >>> >
> >>> >
> >>> >> Greg Shatan
> >>> >>
> >>> >> From: discuss-bounces at 1net.org [mailto:discuss-bounces at 1net.org]
> >>> >> On Behalf Of joseph alhadeff
> >>> >> Sent: Tuesday, March 04, 2014 9:55 AM
> >>> >> To: discuss at 1net.org
> >>> >> Subject: Re: [discuss] Roadmap for globalizing IANA
> >>> >>
> >>> >> While I am not as well versed in these issues and their history
> >>> >> of some of the more frequent commentators, it would seem that
> >>> >> accountability is often benefited by and predicated on a separation
> of duties in oversight.
> >>> >> The new organization seems to rely on self-interested parties
> >>> >> having an alignment of interest with the public good as opposed
> >>> >> to the more traditional concept of separation of duties/interest
> >>> >> in oversight.  Am I missing the checks and balances?
> >>> >>
> >>> >> Best-
> >>> >>
> >>> >> Joe
> >>> >> WOn 3/3/2014 9:43 PM, Milton L Mueller wrote:
> >>> >> Nii, thanks for your questions. Most of them are actually
> >>> >> answered in the paper itself, but I will answer your questions
> directly.
> >>> >>
> >>> >>> Why is removing USG not mean just that? End of contract
> >>> >>
> >>> >> First, it would be the end of 2 contracts, not one. ICANN and
> >>> >> Verisign. You cannot just end the IANA functions contract.
> >>> >>
> >>> >> Second, both contracts contain serious accountability measures.
> >>> >> However wrongly conceived the idea of unilateral U.S. oversight
> >>> >> is, how do we ensure that the root zone is managed properly and
> >>> >> what is the recourse if the root zone managers are either
> >>> >> negligent, incompetent or corrupt? What do you replace the IANA
> contract with?
> >>> >>
> >>> >> The reason for a DNSA is that registries have the strongest
> >>> >> incentive to get root zone management right. It is their data
> >>> >> that the root zone contains. To ensure impartial administration
> >>> >> we create a nondiscriminatory right to own DNSA to all registries?
> >>>
> >>> >>
> >>> >>> What problem is being solved by combining functions from other
> >>> >>> organizations to create another entity dnsa?
> >>> >>
> >>> >> As noted above: 1) accountability problem; 2) incentives problem.
> >>> >> To which we can add: not letting ICANN get too powerful.
> >>> >>
> >>> >>> The proposed Dnsa is potentially a consortium of 1000+
> >>> >>> registries and how would this work.
> >>> >>
> >>> >> Not that many companies involved. More like a few hundred; lots
> >>> >> of companies have multiple TLDs. Ownership shares might be based
> >>> >> on some metric of size, such as names under registration, etc.
> >>> >>
> >>> >> How does GNSO work? How does ccNSO work? How did Intelsat work?
> >>> >> (consortium of ~200 national telecom operators). How did Nominet
> work?
> >>> >> (shared ownership by many registrars) How does IEEE work?
> >>> >> (hundreds of thousands of members).
> >>> >>
> >>> >>> Is this different from creating another ICANN
> >>> >>
> >>> >> Very different. ICANN is for making policy. It involves
> >>> >> representation of diverse stakeholders and a complicated process
> >>> >> for developing consensus on policy and approval by the board. DNSA
> is for operations.
> >>> >> Most people I have talked to agree that we need to keep those
> >>> >> things separate. So, we separate them
> >>> >>
> >>> >>
> >>> >>
> >>> >>
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