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Comments of the Internet Governance Project

  • To: "'comments-cwg-stewardship-draft-proposal-22apr15@xxxxxxxxx'" <comments-cwg-stewardship-draft-proposal-22apr15@xxxxxxxxx>
  • Subject: Comments of the Internet Governance Project
  • From: Milton L Mueller <mueller@xxxxxxx>
  • Date: Wed, 20 May 2015 15:26:25 +0000

(comments also attached as pdf document)

The Internet Governance Project is a group of independent academic scholars who 
both participate in Internet governance institutions and conduct research and 
policy analysis on the issues. Noting that the April 22 CWG proposal is not 
complete, we interpret the call for comments at this time as a referendum on 
the basic model proposed, as well as a chance for the CWG to obtain guidance on 
the additional decisions it must make to complete the proposal. We therefore 
begin by expressing strong support for the basic idea of a legally separate 
Post-Transition IANA (PTI), and later on we propose specific ideas about which 
choices to make as the CWG finalizes the proposal in the next stage.

In our view, the goals of the IANA stewardship transition are:
 - To complete the transition envisioned in the 1998 NTIA White Paper; 
 - To move the oversight and contracting authority (stewardship) over the IANA 
functions from the U.S. government to the global Internet community itself;
 - To continue to keep ICANN's role as IANA functions operator under review, 
potentially non-renewable, and thus accountable; 
 - To clear up the confusion caused by ICANN's dual status as policy maker for 
domain name system and the IANA functions operator for domain names, numbers 
and protocols.

With these goals in mind, IGP believes that the basic model proposed by the CWG 
is an important step in the right direction. The essence of the proposal is to 
create a separate legal entity known as Post-Transition IANA (PTI) that would 
hold the staff, assets and capabilities that are now inside ICANN corporate's 
IANA department. The proposal would make ICANN the contracting authority for 
the names-related IANA functions, and PTI the contracted party to perform the 
names-related IANA functions. It would also create a Customer Standing 
Committee (CSC) that would continuously monitor the performance of IANA. Most 
important, it would create a periodic review process, rooted in the community, 
with the ability to recommend switching to a new operator of the names-related 
IANA functions if ICANN's performance was unsatisfactory. We strongly support 
these basic elements of the model proposed by the CWG. 

We believe that to finalize its model, the CWG should be guided by the 
following principles: 
 - All IANA assets and functions should be moved to the PTI, not just those 
related to names
- CWG should propose forming the PTI as a Public Benefit Corporation rather 
than as a LLC, with its board composed of a mix of insiders and outsiders
- The rebidding or separation process should not be so onerous as to give PTI a 
de facto monopoly over the names-related IANA functions

1. PTI should perform all IANA functions currently done by ICANN
While not explicitly stated in the CWG proposal, we believe the PTI should 
include all IANA registry services currently provided by ICANN's IANA 
department. The IANA department within ICANN is relatively small, which means 
that it makes no sense to separate only the names-related functions. Further, 
given that these functions have been provided together for the past 18 years, 
there are some complementarities and economies in the provision of these 
services across names, numbers and protocols. Thus, it makes sense for all 
IANA-related operations, assets, and staff to be transferred to PTI. To break 
them apart arbitrarily as part of the transition would be needlessly 
destabilizing. In their comments in this proceeding, the numbers community 
(NRO) has said it does "not foresee any incompatibility between the CWG's 
proposal for formation of the PTI and our contracting with ICANN for its 
continuance as the IANA Numbering Services Operator." On the IANAPLAN list, 
some members of the protocols community have also expressed their willingness 
to accept the new arrangement as merely a reorganization; a few other members 
of the protocols community have expressed a preference for splitting the 
protocols functions away from names and numbers in order to keep them within 
ICANN. However, no significant reasons for this preference have been provided, 
and the proponents of this preference have admitted that "the protocol 
parameters registries could probably continue to work just fine if the 
resources and personnel were moved [to PTI]..." Therefore it is best to keep 
all the IANA functions together in PTI during the transition.

2. PTI's corporate governance should ensure its relative independence from ICANN
Unless the right choices are made regarding PTI's corporate structure and 
board, there is a danger that PTI would be so controlled by ICANN that many of 
the advantages of creating a separate legal entity would be lost. More 
specifically, we believe that PTI should be organized as an affiliated public 
benefit corporation (PBC) rather than a wholly owned subsidiary (i.e., a LLC). 
Furthermore, the PTI board should be composed of representatives from the 
names, numbers and protocol communities. PTI's board should be small and 
operationally fpocused; its governance should not be designed to mirror the 
multistakeholder policy community, as its focus should be on implementation of 
policy rather than re-litigating policy conflicts.  

It is important to recognize that the combination of a legally binding 
contract, CSC oversight, periodic review and the possibility of non-renewal of 
the contract should be more than sufficient for PTI to remain completely 
accountable to the names-related Internet community that is supposed to govern 
ICANN. The idea that a more independent PTI could somehow be "captured" and 
used to thwart the policies developed by ICANN is not grounded in any rational 
assessment of the proposal. Stewardship over the names-related IANA functions 
remains with ICANN and the PTI is merely a contractor with strong ties to ICANN 
community that implements the policies developed by ICANN. PTI has no funding 
and no authority other than as a contractor of ICANN. If it acted in a manner 
contrary to its contract it would be in breach and could be replaced.

Forming the PTI as a PBC will be easier to implement and more likely to ensure 
various measures of good corporate governance. For instance, a PBC that secures 
nonprofit status will by default be bound by a nondistribution constraint, 
prohibition of inurement and private benefit, and restrictions on transfers of 
its assets upon (possible) dissolution.  If the LLC form was chosen, these 
constraints and other baseline responsibilities for the PTI board or management 
would not exist ex ante. To create them, the transition process would need to 
debate them, agree upon them and write them into PTI governing documents. It 
would be also necessary to identify a way to ensure that the PTI governing 
board or management could not simply amend the governing documents to 
circumvent the constraints. In short, the LLC form makes the implementation of 
PTI much more complex and risky.

The PTI board must have duty of loyalty, duty of care and duty of obedience 
including fiduciary responsibility to the PTI. Doing so will help ensure that 
the PTI board, while still complying with its various contracts with the names, 
numbers, and protocols communities and limited mission, remains focused on 
implementation of the IANA registries, and makes decisions in the best 
interests of the organization. This arrangement would best maintain the 
separation of IANA registry implementation from policy making currently 
required by the NTIA contract. Given this constrained role, the PTI board 
should be composed of a limited number of representatives from each of the 
supporting policy making organizations and the PTI itself. For example, the 
IETF liaison and Address Supporting Organization representative to the ICANN 
board, along with one representative from the Generic Names and ccTLD 
Supporting Organizations, in addition to the PTI Executive Director, should 
compose the PTI board or management.  The selection and removal of these 
representatives should occur according to processes determined by the 
respective organizations (i.e., IETF, ASO, GNSO, ccNSO, PTI). In this manner, 
the PTI board would be directly accountable to the relevant stakeholders and 
not be self perpetuating.   

3. Review and re-contracting process should be efficient
Just as pre-transition ICANN was held accountable by the possibility that NTIA 
would not re-award it the IANA functions contract, so the post-transition IANA 
should be held accountable by the possibility that ICANN, acting with the 
support of its broader community, would not re-award it the IANA contract. For 
this accountability measure to be effective, the review, re-bidding and 
selection process must be quick and efficient. We urge the CWG to simplify and 
expedite the IFR process and to develop a clearer, more efficient re-bidding 
and selection process. 

Dr. Milton L. Mueller
Dr. Brenden Kuerbis
Farzaneh Badiei

Attachment: IGPCommentsforCWGproposal.pdf
Description: IGPCommentsforCWGproposal.pdf

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