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Haste Makes Waste: Comments on ICANN CWG IANA Transition Proposal Indicate Serious Process Problems

Philip S. Corwin

On December 1, 2014 the Cross Community Working Group (CWG) on Naming Related Functions published a Draft Transition Proposal. The comment period on the Proposal extended for twenty-one days; due to a requirement imposed by the separate IANA Coordination Group (ICG) that a final proposal be received by mid-January, there was no provision for a follow-up reply comment period as is standard ICANN Practice for issues of far less consequence.

Four key elements constitute the basic components of the Proposal:

  • Contract Co. – This primary function of this entity (likely a non-profit corporation) is to be signatory to the contract with the IANA Functions Operator (IFO), which presumably would be ICANN.
  • Multistakeholder Review Team (MRT) – The MRT would be a multi-stakeholder body with formally selected representatives from all of the relevant communities. Its responsibilities would include developing the terms for a contract between the Contract Co. and the IFO; making key decisions for Contract Co.; conducting the IFO budget review; performing certain administrative tasks; and managing a periodic contract rebidding process for the selection of the IFO.
  • Customer Standing Committee (CSC) – The CSC would primarily be made up of a number of representatives of registry operators, including ccTLD and gTLD registries. Its input would inform the work of the MRT and they would join together to establish Service Levels and Performance Indicators. It would also receive, review, and evaluate reports from the IFO.
  • Independent Appeals Panel (IAP) – All IANA actions which affect the Root Zone or Root Zone WHOIS database would be subject to an independent and binding appeals panel. The Appeals Mechanism should also cover any policy implementation actions that affect the execution of changes to the Root Zone File or Root Zone WHOIS and how relevant policies are applied.

The Proposal elicited dozens of filed comments. Initial review indicates not just significant differences in opinion on the basic Proposal elements outlined above, but broad dissatisfaction with the manner in which the activities of the IANA functions transition work stream are being coordinated with that of the separate Cross Community Working Group — Accountability (CCWG) that has just recently begun its efforts to develop enhanced accountability measures for ICANN the organization. The National Telecommunications and Information Administration (NTIA) has stated that it will only approve the IANA functions transition if it is accompanied by those accountability measures that the community has determined must be in place at the time of the handoff.

The public comments make clear that there is deep dissatisfaction with the deadlines being imposed on this process, the lack of time for adequate community review and input, and its failure to be meaningfully coordinated with the interrelated Accountability work stream.

The goal of a September 2015 IANA transition seems increasingly unrealistic when confronted with the complexity of the issues involved and the time required for responsibly addressing them in a coherent and coordinated fashion. The best way to assure an IANA transition at the earliest feasible date consistent with the security and stability of the DNS and greater organizational accountability for ICANN is to lift the unrealistic deadlines imposed on the CWG by the ICG, and allow the Accountability work stream to catch up with and proceed in tandem with this Transition component.

Public Comment Overview

An initial tabulation of the public comments by the CWG found major agreement (75% or more of comments on a specific subject sharing the same view) and sufficient weight (significant percentage of comments addressing that subject) in a variety of areas.

One hundred percent of applicable comments regarding the proposal said that applicable ICANN accountability must be in place before the IANA transition occurred.

Other areas getting high agreement were that IANA performance to date was satisfactory (92%); the IANA transition should not take place at the start of the process (92%); support for the CSC component (91%); that the proposal was too complex (90%); and that the IAP's decisions should be binding (79%).

However, on the critical issue of creating a Contract Co. to replace the NTIA as counterparty to the IANA contract, 56% of those commenting on this aspect opposed it; the weight accorded to that subject was 57%, so it was addressed in a majority of comments.

Among those commenters addressing the issue of adequacy of time, all said the comment period was too short to properly evaluate the proposal. About half the comments also stated that the proposal lacked adequate detail for full evaluation.

It should be noted that the CWG's methodology for calculating comment percentages accorded the same weight to the comment of a single individual as that of a major ICANN entity, trade or civil society organization, or corporation, so they may not represent a fully accurate picture of consensus views.

Drilling down into the substance of the comments, the Internet Governance Project (IGP) recently published a detailed summary that links to an evaluation of comment high points, to which this author has added his own separate review and observations.

Let's look at where some key groups came out:

  • The Registries Stakeholder Group, not surprisingly, said that direct customers of IANA need greater influence and recognition, that oversight should be limited to technical and operational issues, and that the CSC should be able to initiate an IANA contract rebid.
  • The Registrar Stakeholders Group said that establishing Contract Co. was a necessity and that separation of technical and policy issues must be maintained. But it raised concerns about possible MRT "scope creep" and its potential to become a "parallel ICANN".
  • To the contrary, the Business Constituency said that it opposed the Contract Co. concept and preferred that the separate CCWG process give the community the power to "spill the Board" and replace it. It also viewed the proposal as overly complex and raising more questions than were answered.
  • The Intellectual Property Constituency emphasized that ICANN should remain subject to US jurisdiction, urged that the MRT have a multistakeholder makeup, and inquired about the root zone authorization function. In a comment from another IP organization, the International Trademark Association said the proposal lacked sufficient detail for support, while noting its belief that the Contract Co. would enhance accountability.
  • The ISP Constituency supported the general approach but judged it incomplete.
  • The At-Large Advisory Committee rejected the Contract Co. concept as posing inordinate complexity, costs and risks, wanting to rely instead on the presently unknown elements of the CCWG-Accountability proposal. (In subsequent CWG discussions ALAC participants have indicated it might accept something like Contract Co. in a worst case scenario and as a last resort.)
  • The Non-Commercial Stakeholders Group supported most elements of the proposal but raised detail questions about many aspects.
  • Verisign, the current performer of the IANA root zone management (RZM) services under a separate contract with the US government, explained how the checks and balances embodied in the current three-part approach — including the participation of a public company subject to a variety of oversight and discipline mechanisms — resulted in general success for IANA functionality, and urged the CWG to keep that in mind. It also worrisomely declared that "ICANN's uneven operational performance record to date could pose a substantial risk to the many billions of dollars of ecommerce and other critical functions that depend upon a stable, secure and operational root", a statement that would seem to argue against granting the IANA functions to ICANN in perpetuity.
  • The ICANN Board questioned the need for any contract rebid process, alleging that it overreached and posed risks while contending that "ICANN was purpose built to be the permanent home of the IANA functions". ICANN would naturally prefer an "internal solution" that awards the IANA functions to it permanently, but that avenue did not achieve majority support either within the CWG or among commenters.

    (Note: The CWG is quite aware that a Board Resolution of October 16, 2014 states that it can reject any proposal from the parallel Accountability CCWG that it believes "is not in the global public interest". The uncertainty over what organizational accountability enhancements will be proposed, much less implemented, along with a general belief that technical and policy functions must remain separate, is a significant driver of the CWG's own internal thinking. On the subject of Board acceptance of the transition proposal eventually forwarded by the ICG, an FAQ it published states, "The ICG expects that its proposal, having achieved consensus on the Coordination Group and within the Operational Communities, will be welcomed by the ICANN Board and dutifully transmitted to NTIA." At the Community Discussion with the IANA Stewardship Coordination Group held on October 16th, 2014 during the ICANN 51 Los Angeles meeting, IANA stewardship transition coordination group Chair Alissa Cooper stated, "finally we've had some questions about whether the ICANN board will have to approve the final transition plan, whether they will be able to modify the transition plan before it gets sent on to NTIA. And those are questions that we are currently engaging with the ICANN board and staff about." This author is not aware of any further information becoming available regarding the Board's role and what standard it might apply to evaluation of the ICG's final transition plan.)

Other issues arose in the comments, including jurisdiction and choice of law for Contract Co. The government of Brazil, host to last year's NETmundial conference, was among those urging that it be located outside the US in a "neutral" country. The Registrars commented that the US would be "ideal", Canada or the UK "acceptable alternatives", and Switzerland "problematic". This jurisdictional issue is likely to become more prominent in the proceedings of the Accountability CCWG, with various parties likely to suggest that ICANN abandon its status as a US-based California public benefits corporation. But any suggestion that the IANA transition lead to severance or lessening of ICANN's US jurisdictional ties is likely to arouse an adverse reaction from a US Congress already skeptical of the entire project — and the NTIA may well concur on this critical point.

Overarching Process Concerns

One recurring theme was the disconnectedness of the CWG and CCWG processes and the challenges that posed to coherent understanding and evaluation of the CWG's IANA proposal. In other words, many comments made the point that that the entire process was putting the cart before the horse.

The Registrars, for example, stated that "the timing of the Accountability CWG and its work has created needless complexity and unanswered questions for the naming CWG...This is not a criticism of the CWG, but a public acknowledgement of the failure of ICANN itself to initiate the required work in a timely fashion."

Similarly, the Registries opined that "the delay by ICANN in acknowledging that the NTIA stewardship transition and accountability discussions were inter-related has resulted in the issues to be discussed under the two processes being conflated...significant delays to the Accountability Process have still prevented engagement and collaborative work across the two work streams. The dilemma is that the two processes are clearly being addressed out of order...the IANA transition process has advanced far ahead without the requisite knowledge of how key ICANN accountability mechanisms will interact with the Transition Proposal...The likely consequence of this disjointedness is that it will lead to duplicative mechanisms or a failure to consider all possible options available...ICANN has effectively forced the CWG-IANA to develop an overly complicated proposal."

The IP Constituency opened its comments with a declaration that "the current timeline for consideration and approval of the proposal is unrealistic and incompatible with an effort to achieve thoughtful multi-stakeholder input...the Proposal itself is incomplete, and once completed it will not come back to us for review… since the timeline of the CCWG-Accountability does not provide for that group to report out even partial recommendations until the end of May, it seems all but inescapable that the timeline set by the ...ICG… is not achievable."

Similarly, the Business Constituency stated that "the BC finds it extremely difficult to evaluate the CWG transition proposal without the accompanying accountability enhancements. Commenters are being asked to judge the early results of one process while the other is still in its organizational stage. This challenge is exacerbated by the fact that the CWG framework is largely a blueprint that lacks critical detail...The issues associated with the transition are so important that they call for further development of the proposal and an additional thirty-day comment period, followed by a reply period, to allow for true community understanding, participation and consensus."

Next Steps

The CWG is now engaged in a process of evaluating the comments and is preparing a questionnaire for its members and participants in an attempt to determine how the MRT and CSC aspects of the proposal should be further refined. That survey contains forty-six separate statements with which CWG members and participants are supposed to indicate varying degrees of agreement or disagreement, with all responses required to be received back prior to an intensive work weekend of January 10-11. A separate survey on the IAP and Contract Co. is also being prepared for near-term circulation.

This breakneck quest is being undertaken to meet a target submission deadline of January 15th for delivering a final proposal to the ICG. In one striking development, ICANN Board Chairman Steve Crocker has weighed in with multiple e-mails questioning the survey's statistical validity and the core elements of the proposal it is seeking to refine, resulting in turn in some CWG members questioning whether such intervention constitutes an attempt at undue influence. While liaison between the two working group with the Board seems desirable, at a certain point it may be deemed inappropriate for the Board or its individual members to be seeking to shape proposals that are supposed to emanate from the community for ultimate Board consideration. (Although, as noted above, the Board's role vis-à-vis the final ICG proposal remains unclear.)

Conclusion

While the CWG members deserve heartfelt commendation for the dozens of hours each has contributed and demonstrably intense dedication to their mission, it seems highly unlikely — indeed, impossible — that what they deliver in mid-January can be a fully coordinated, internally coherent, and adequately detailed IANA functions transition plan. It will certainly lack any claim of broad community support, because the ICG-dictated timeline does not allow the revised proposal to be put out for another round of comments. And it cannot possibly reflect the interrelated ICANN Accountability proposal because the initial draft of that will arrive months from now.

Good people and intentions are being undermined by a badly flawed process. ICANN's Board wants to see the IANA transition take place by September 2015 and to avoid any extension of the current contract's term by the NTIA, and it is actively communicating to (and some would say seeking to unduly influence) the CWG to revise its current plan and steer it in the direction of the "internal solution" that awards it the IANA functions permanently without any counterparty or contract rebid potential.

The multistakeholder model (MSM) embodied within ICANN, and in the CWG and CCWG work streams, can produce excellent results that withstand the test of time. But the MSM, by involving the broad community of divergent interests and perspectives in consideration of complex and multifaceted issues, is by necessity slow and sometimes messy, and is prone to breakdown if not permitted to operate at its own pace — regardless of how much effort is expended by participants.

This process train will likely soon go off the tracks unless it slows down. The ICG should back off its demand for a mid-January submission by the CWG. The CWG should be given adequate time to flesh out its proposal with significant detail and to share that revised and expanded draft with the entire community for adequate comment and reply periods. Only then will it be possible to craft a coherent near-final transition proposal that can claim consensus support.

And even then, the ICG should refrain from putting forth any final proposal for Board or NTIA consideration until the Accountability process catches up and there is a real opportunity to assure that the twin plans can be pragmatically and operationally implemented to a degree that assures the stability and security of both the IANA functions and ICANN itself. And let's remember that the Accountability proposal — which is more politically charged, will almost surely require ICANN Bylaws amendments, and key elements of which may be rejected or watered down by the ICANN Board — will likely take significantly longer than the IANA transition process it already trails by months.

It is becoming ever clearer that the goal of a September 2015 IANA transition — which requires delivery of a fully developed and community supported transition plan and accompanying accountability enhancements to the NTIA by July — is an impossible dream. Indeed, ICANN staff has just alerted participants in the CCWG-Accountability process that the projected delivery date of their Work Stream 1 output to ICANN's Board has just slipped from June 30th to August 8th. With Board review and potential negotiations on disputed recommendations preceding delivery to NTIA, the prospects for a September 2015 transition are now approaching zero. And does any experienced observer of ICANN and this process believe that the delivery target date won't slip again, perhaps more than once, in coming months?

In addition, now that the U.S. has enacted legislation that appears to require some IANA contract extension by the NTIA beyond September, hasn't the time come for ICANN itself to indicate that the ICG should drop its demand for unrealistic CWG delivery deadlines and allow this process to go forward in a more deliberative and responsible fashion? Getting this transition done right is far more important than getting it done fast and wrong.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm – He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own. Visit Page
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