IAB comments on Draft New ICANN Bylaws

[IAB Chair <iab-chair@xxxxxxx>]

The Internet Architecture Board (IAB) appreciates the opportunity to
comment on the draft new ICANN Bylaws. We commend all those involved
in drafting the new Bylaws for their tremendous efforts over a very
short period.

The IAB understands that the purpose of amending the Bylaws at this
time is to implement the recommendations contained in the IANA
Stewardship Transition package, comprised of the ICG and
CCWG-Accountability proposals. The call for public comment [1]
specifically solicits inputs on how those proposals were brought into
the Bylaws and whether there are areas seen as inconsistent with the
IANA Stewardship Transition package.

The IAB has concerns about sections 1.1(d)(ii)(B)-(E). Section 1.1(d)
of the draft Bylaws contains so-called "grandfathering"
provisions. These provisions are designed to prevent any party from
raising a challenge on the basis that the terms and conditions of
various agreements between ICANN and other parties violate the newly
edited ICANN Mission statement. Paragraph 147 of the
CCWG-Accountability proposal specifically provides for grandfathering
of registry and registrar accreditation agreements, thereby laying the
foundation for referencing them in section 1.1(d)(ii)(A). By contrast,
there is no foundation in either the CCWG-Accountability proposal or
the ICG proposal for sections 1.1(d)(ii)(B)-(D), which apply to
agreements between ICANN and the ASO, NRO, IETF, Root Zone Maintainer,
and PTI; neither is there foundation for 1.1(d)(ii)(E), which applies
to ICANN's five-year plans.

The IAB believes that the provisions of sections 1.1(d)(ii)(B)-(E) --
which are substantive provisions that materially affect large parts of
the Internet community -- are outside the scope of both the ICG
proposal and the CCWG-Accountability proposal. The IAB cannot identify
any provision of either proposal that indicates a need for the
inclusion of sections 1.1(d)(ii)(B)-(E) in the Bylaws. The purpose of
amending the Bylaws was only to fulfill the requirements as stated in
the proposals, so we believe the inclusion of these additional
provisions is not justified.

As a result, the IAB recommends that sections 1.1(d)(ii)(B)-(E) be
deleted from the final Bylaws, and that section 1.1(d)(ii)(F) be
amended such that it applies only to renewals of agreements described
in section 1.1(d)(ii)(A).

 From the beginning of the transition proposal development process, the
IAB has repeatedly emphasized the importance of having the transition
plans reflect the consensus of the Internet community and the autonomy
of the operational communities in defining their own transition plans
[2][3]. As the proposals get implemented, it is even more critical
that the desires of the communities precisely as documented in the
proposals be faithfully carried forward, without new requirements or
provisions being inserted when the opportunity has passed for the kind
of community discussion and consensus-building that occurred over the
months and years of transition proposal development. The fact that
even minimal discussion and coordination about section 1.1(d) between
the Bylaws drafters, the CCWG, and the operational communities failed
to occur before the draft Bylaws were posted for public comment [4] --
despite concerns being raised about this section within days of the
initial draft Bylaws publication [5] -- demonstrates exactly how
introducing additional provisions at this stage undermines the
legitimacy of the transition process overall. Sections
1.1(d)(ii)(B)-(E) directly impact all of the operational communities
and the Root Zone Maintainer as well as the entire ICANN community and
this sort of overreach could have been caught and prevented had this
discussion not been left to the late stages of the process.

We have read the grandfathering explanation provided by the CCWG legal
team, which provided the reasoning for these sections [7]. We
understand the reasoning, but it is not grounded in the community's
expression of what the community desired. Instead, the grandfathering
explanation argues that the external agreements and the five-year
plans ought to be covered under the Mission anyway, so it is
acceptable to protect the agreements and plans from challenge. That
reasoning is circular. The point of a challenge on the grounds that an
agreement is not within the Mission is exactly to discover whether it
is within the Mission. One cannot therefore exclude the challenge on
the basis that the agreements are (or will be) within the Mission.

Although sections 1.1(d)(ii)(B)-(E) deserve to be struck from the
Bylaws on procedural grounds alone, it is not difficult to imagine
substantive objections to these provisions that may have emerged had
the community debated them as part of the proposal development
process. Consider the portion of 1.1(d)(ii)(B) that applies to the
IETF as an example:

- The effect of prohibiting any challenge of any agreement or
  agreement renewal on grounds of Mission violation is that the terms
  of the agreements come to define ICANN's Mission, since no party who
  identifies a violation can seek to rectify it. One could argue that
  it is backwards to have agreements with external parties define the
  ICANN Mission, in particular when the community put an immense
  amount of work into narrowly and appropriately defining ICANN's
  Mission. That work is reflected in paragraphs 140-144 of the
  CCWG-Accountability proposal. The language from those paragraphs
  that pertains to the protocol parameters is copied nearly
  word-for-word into the draft Bylaws section 1.1(a). The IAB had
  substantial input into this proposal language and welcomed its
  finalization with pleasure [6]. From this, one could conclude that
  no further additions to it are necessary.

- Should ICANN or the IETF exercise the termination clause of the
  existing IETF-ICANN Memorandum of Understanding (MoU), ICANN's
  Mission statement will contain a reference to an agreement that no
  longer exists.  One could argue that an independent organization's
  foundational documentation is not the appropriate place to create
  such an external dependency.

- With the CCWG-Accountability proposal having achieved community
  consensus in the design of new ICANN accountability mechanisms,
  including the Independent Review Panel process, one could argue that
  immediately foreclosing the ability for any party to make use of
  those mechanisms for the purposes specified in section 1.1(d) is
  inappropriate, or that the risks to the legitimacy of the mechanisms
  that accrue by foreclosing their use outweigh the risks of any
  potential challenge on the grounds that the IETF-ICANN MoU violates
  the ICANN Mission.

We have listed these potential arguments merely to illustrate why the
creation of sections 1.1(d)(ii)(B)-(E) by the Bylaws drafting team
without any basis in the community proposals is problematic. A variety
of other substantive debates concerning other parts of (B) as well as
(C), (D), and (E) are imaginable, in particular given that some of the
agreements they reference have yet to be written or publicly reviewed,
and most have yet to be approved.

It is the IAB's firm belief that given the time remaining to
successfully conclude the transition process in 2016, the only option
is for the implementation process to remain faithful to the ICG and
CCWG-Accountability proposals. We reiterate our recommendation that
sections 1.1(d)(ii)(B)-(E) be deleted from the final Bylaws, and that
section 1.1(d)(ii)(F) be amended such that it applies only to renewals
of agreements described in section 1.1(d)(ii)(A).

Respectfully submitted,

Andrew Sullivan
For the IAB

[1] https://www.icann.org/public-comments/draft-new-bylaws-2016-04-21-en
[2] 
https://www.iab.org/wp-content/IAB-uploads/2014/04/iab-response-to-20140408-20140428a.pdf
[3] 
https://www.iab.org/documents/correspondence-reports-documents/2015-2/iab-comments-on-icg-proposal/
[4] 
http://mm.icann.org/pipermail/accountability-cross-community/2016-April/012060.html
[5] 
http://mm.icann.org/pipermail/accountability-cross-community/2016-April/011867.html
[6] 
https://www.iab.org/documents/correspondence-reports-documents/2015-2/iab-comments-on-the-ccwg-accountability-3d-draft-report/
[7] 
http://mm.icann.org/pipermail/accountability-cross-community/2016-April/012058.html

-- 
IAB Chair (Andrew Sullivan)
iab-chair@xxxxxxx