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NTIA Directs Smoke Signals Toward LA

Philip S. Corwin

On September 25th-26th the Cross Community Working Group developing enhanced accountability measures to accompany the IANA functions transition, and replace the "backstop" role played by the U.S., will meet in Los Angeles to review the 90 comments filed on their second draft Proposal and consider responsive modifications.

In advance of the meeting, on September 23rd Assistant Secretary for Communications and Information and NTIA Administrator Lawrence E. Strickling published a new blog titled "Reflections on the IANA Stewardship Transition Process". As NTIA will be the primary evaluator of whether the transition & accountability package that is eventually forwarded by ICANN meets the criteria it set when it announced the transition in March 2014, CCWG participants in LA will be carefully reading the tea leaves of this latest NTIA statement.

This is our summary of its key takeaway points, with relevant text:

  • We're not yet at the finish line – "...it is clear that there is a substantial amount of consensus support for the goals and principles [and] many of the specific elements of the plans… However, the comments also reveal that stakeholders have not reached consensus on all the specific tools that have been proposed to enhance the accountability...and that there are many questions still to be answered, both about the substance of the overall plan as well as its implementation, before the community will be ready to submit a final proposal".
  • Bridge your differences – "The most critical factor for a successful discussion this week is that stakeholders focus on bridging their differences.  This transition planning is testing the multistakeholder model as never before… Making history is hard work and on matters this important, it is never a smooth path to reach agreement."
  • Identify matters on which there is clear consensus – "...stakeholders might consider as their first task to catalogue the many aspects of the CCWG proposal for which there is clear consensus".
  • Fill in the details – "There is not enough detail in the current draft for NTIA to conduct a thorough analysis of how the plan meets our criteria. The questions asked by stakeholders in the public comments demonstrate significant confusion and uncertainty… and some apprehension".
  • Evaluate the final draft against NTIA criteria – "...after completing these first two tasks, stakeholders should then evaluate whether the package of detailed proposals for which there is consensus is adequate to satisfy our criteria. For example… would it provide a commensurate level of accountability that stakeholders perceive has been provided over the years by the backstop of ICANN's IANA functions contract with NTIA?"
  • Make sure there is consensus backing, and don't expect NTIA to make choices or fill in the details – "If the answers to these questions are yes, stakeholders could then consider whether to proceed to prepare a final proposal to be presented to the chartering organizations at ICANN's October meeting in Dublin.  If the answers are no, stakeholders should then engage in a gap analysis...then, all stakeholders need to come together to reach consensus because there is no alternative path to completing the transition.  Stakeholders should not think that they can submit competing plans to NTIA for our consideration.  We will not choose between proposals, and it is not our role to substitute our judgment for that of the community."
  • Take the time you need – "...do not let timing pressures deter you from delivering a fully-formed, well-thought-through plan...provide us a plan that is as simple as possible but still meets our conditions and the community's needs.  Every day you take now to simplify the plan, resolve questions, and provide details will shorten the length of time it will take to implement the plan and increase the likelihood that the plan will preserve the security and stability of the Internet.  Putting in the extra effort now to develop the best possible consensus plan should enhance the likelihood that the transition will be completed on a timely schedule."

We also have a few thoughts about the implications of this message:

  • A final proposal is very unlikely to be delivered to the chartering organizations when ICANN meets in Dublin mid-October. Even if CCWG members can complete the Herculean task of reviewing all 90 filed comments and making responsive adjustments to the Proposal, while including all the additional details that NTIA believes necessary, there is no way to be certain that there is consensus backing for such a revamped proposal without a final round of comments. There are simply too many key portions of the Proposal on which there is not yet consensus or even adequate understanding, and having one or more chartering organizations reject a proposal in Dublin is too big a risk. Indeed, CCWG leadership has indicated that the additional time required will be at least weeks and perhaps months. The best use of Dublin may be for the CCWG to engage with the community and get feedback on remaining key issues.
  • Not every difference can be bridged, and the CCWG faces some fundamental choices. While the Board has made many useful comments on elements of the Proposal, the key challenge for the CCWG will be to reconcile its Sole Membership Model (SMM) with the Board's Multistakeholder Enforcement Model (MEM). Unfortunately, there are some matters on which it is simply not possible to "split the difference", and the yawning gap between the SMM and MEM in terms of scope, operation, and enforceability appear to fall in that category.
  • There may need to be another IANA contract extension. While NTIA's optimistic message is that extra time taken now can shorten the implementation period, the history of ICANN working groups in general and this CCWG in particular is that things always get more complicated and take more time than anyone wants or expects. Even after a final Proposal demonstrates consensus support and chartering organization acceptance, there is still the task ahead of drafting the Bylaws provisions to implement it and putting them in place pre-transition. That of course involves multiple legal advisers capable of arguing for weeks over the implications and accepted understanding of this or that word or phrase; and the Board will again play a key role, and may again exercise reactive leverage, in approving proposed Bylaws changes.

Overall, NTIA's statement offers a useful perspective for the CCWG to consider as it gathers in LA. But it also indicates that the U.S. government agency that will evaluate the final transition and accountability package wants a great deal more work completed before it is delivered to its doorstep. The completion of a sufficient and workable accountability proposal earning consensus support is a key test for the multistakeholder model, one that it must pass if the community is to successfully replace NTIA's backstop role and enhance its participation in ICANN's internal governance.

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.

Related topics: ICANN, Internet Governance, Policy & Regulation


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