ICANN CCWG-Accountability Co-Chair Comments on the Public Comments

Finished reading 89 comments. Mind blown. Some interesting, few fun. Thks to my fan @DomainMondo for shooting our report ;-) #icann #acct

— Mathieu Weill (@mathieuweill) September 14, 2015

Mathieu Weill is co-chair of ICANN's Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability). In the tweet embedded above he is referring to the public comments submitted in response to the CCWG's 2nd Draft Report (Work Stream 1), for which the comment period ended September 12. All of the comments submitted may be reviewed here.

Mathieu's reference to Domain Mondo above is in reference to the comment submitted by John Poole, editor of Domain Mondo, which may be read in full here (pdf), excerpts below:

To CCWG-Accountability:
".... Your proposal, though well-intentioned, is unacceptable and fundamentally flawed. You have failed to follow your own Charter, and in your “rush to meet a deadline” you have failed to achieve the charter’s stated goal: a proposal which enhances ICANN’s accountability towards all stakeholders—i.e., the global multi-stakeholder community. Instead, you have focused solely on a power-game of “who’s on top”--the ICANN Board of Directors or the few well-resourced, special interests, who dominate and control the so-called “ICANN stakeholder community” which is not representative of, nor even accountable to the global Internet community a/k/a global multi-stakeholder community. Your proposal does not “enhance ICANN’s accountability towards all stakeholders.” It does subject the ICANN Board of Directors to greater direct manipulation, control, and capture by the “special interests” which NTIA’s stewardship and the Affirmation of Commitments had prevented, to some degree. Your proposal, as it stands, is therefore not in the public interest, nor is it in the best interests of the global multi-stakeholder community. In fact, your proposal is a step backwards and will hasten the demise of ICANN within just a few years, at the insistence of a global multi-stakeholder community, fed up with the avarice of those self-serving “ICANN community stakeholders” or “special interests” who disrespect the values and ideals of Jon Postel and his peers as expressed in RFC 1591: “The designated manager [of a TLD] is the trustee of the top-level domain for … the global Internet community."  Whatever happened to the fiduciary standard of duties owed by gTLD (and ccTLD) registry operators to the global Internet community? .... Unless you are willing to backtrack and spend the necessary time—at a minimum, six months or more—to reconsider, redraft and correct your fundamentally flawed proposal, you should sit down in LA later this month and honestly try to work out something with the [ICANN] Board--setting aside your collective egos, your obvious “sunk cost bias” in favor of the CCWG proposal, and the “group think” clearly evident on your CCWG mail list. I suggest you listen closely to Mathieu Weill. I have been a close observer of your work since the beginning and I trust his judgment and leadership. I have reviewed the ICANN submittal of September 11, 2015, and while it is far from perfect, as best I understand it, a dialogue with the Board may help lead to a path forward. Frankly, the best thing that happened this year, in terms of improving or “enhancing” ICANN accountability, was the dotSUCKS fiasco, because now all of ICANN—stakeholders, directors, officers, staff, contracted parties, and service providers—are now on the radar of the US Federal Trade Commission, and probably the U.S. Justice Department as well. I agree with INTA [International Trademark Association], U.S. jurisdiction should be a fundamental bylaw. The potential for corruption, particularly within the ICANN Global Domains Division, is too great to allow ICANN to try to escape or evade prosecution by relocating to a “friendlier” jurisdiction. The global multi-stakeholder community really doesn’t need more FIFA-like scandals .... ICANN may need Board reform—that should have been priority #1. Almost every failing of ICANN can ultimately be attributed to a Board of Directors that was not activist, failed to question, failed to challenge stakeholders, management, staff or GAC advice, failed to be vigilant, pro-active. Therefore, review and improve processes for selecting members of the ICANN Board of Directors, which will lead to independent, activist, vigilant ICANN directors, reflective of the diversity of the global multi-stakeholder community, who will question, investigate, and push back (when necessary or appropriate) against policies advanced by self-interested ICANN stakeholders which are to the detriment of the global public interest or the global multi-stakeholder community; directors who will question and hold accountable ICANN officers, ICANN staff, GAC advice, and all ICANN stakeholders, including policy-making proposals, inquiring as to whether ICANN policies and principles have been followed ...." (emphasis added in sentence referring to Mathieu Weill)


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DISCLAIMER

IANA Transition Comment Deadline, Domain Mondo Editor Comments

The deadline to submit comments on the IANA Stewardship Transition Proposal is today, September 8, 2015, at 23:59 UTC which is 7:59 PM ET (US). After the conclusion of the public comment period, the ICG will make a final determination about whether to recommend that NTIA approve the transition proposal. More information including Instructions for How to Submit Public Comments is here | https://www.ianacg.org/calls-for-input/combined-proposal-public-comment-period/.

Below are the comments submitted by the Editor of Domain Mondo:

Questions Concerning the Proposal as a Whole
1) Completeness and clarity: Is the combined proposal complete? Each of the operational community proposals contains aspects to be completed in the future when the proposal is implemented. Is the combined proposal specified in sufficient detail such that it can be evaluated against the NTIA criteria?

Numbers: Complete;
Protocol Parameters: Complete;
Names community: INCOMPLETE due to its "dependencies" upon the final work product of WS-1 of CCWG-Accountability, which at this point appears to be unacceptable or inadequate in its present form as contained in the "2nd draft report" published for a comment period ending Sept 12, 2015.

2) Compatibility and interoperability: Do the operational community proposals work together in a single proposal? Do they suggest any incompatible arrangements where compatibility appears to be required? Is the handling of any conflicting overlaps between the functions resolved in a workable manner?

The numbers and protocols proposals work together as a single proposal, with ICANN as the IANA functions operator (IFO). The names proposal is incompatible and inconsistent and results in creating a second IFO (for the "Names community") called PTI, a to-be-created corporation. This is creating unnecessary complexity, incurring unnecessary costs (CWG-Stewardship has reportedly incurred millions of dollars in legal fees, with more to come), and deriving little, if any, net benefit for the names community or the global Internet community. All of this could have been handled internally to ICANN through new bylaws whereby the gTLDs and ccTLDs could comprise a CSC and provisions providing for the selection of a different IFO than ICANN should that need arise. The irony in all of this is that the IANA department within ICANN has always performed its job well as far as I have been able to determine. Certainly numbers and protocols think so. Unfortunately, as the ICG is well aware, CWG-stewardship or “names community” is a dysfunctional group (described by one ICG member, the esteemed Prof. Mueller, as “a collection of warring interests”), who wasted months trying to develop an overly complex "turnkey" proposal referred to as "Contract Co." only to jettison that concept for a "compromise" "hybrid" "solution" now called PTI. This is all indicative of what Nassim Taleb refers to as the "fragilista" who “make you engage in policies and actions, all artificial, in which the benefits are small and visible, and the side effects (are) potentially severe and invisible.” Unfortunately this is also consistent with the tendency of many of ICANN's "names" stakeholders in ICANN policymaking processes to prefer complex dysfunctional solutions over simple functional solutions, in order to increase their "insider" knowledge and status, increase costs, and form barriers to any effective participation by "outsiders" from the global Internet community. Can we (ICANN and the global Internet community) live with this incompatibility and the potential "conflicting overlaps?" As far as the ICG proposal is concerned, I am confident the ICANN Board, management and staff can jury-rig the "workarounds" necessary to "make it work."

3) Accountability: Do the operational community proposals together include appropriate and properly supported independent accountability mechanisms for running the IANA functions? Are there any gaps in overall accountability under the single proposal?

Numbers and Protocols proposals have accountability built-in, consistent with years of experience working with ICANN as IFO. Names proposal? Unknown. CWG-Stewardship claims its new structures' accountability mechanisms will work. Time will tell. See also #6 below.

4) Workability: Do the results of any tests or evaluations of workability that were included in the operational community proposals conflict with each other or raise possible concerns when considered in combination?

I covered this in #2 above.

Questions Concerning NTIA Criteria
5) Do you believe the proposal supports and enhances the multistakeholder model? If yes, please explain why. If not, please explain why and what proposal modifications you believe are necessary.

For better or worse, I think the proposal is consistent with the multistakeholder model.

6) Do you believe the proposal maintains the security, stability, and resiliency of the DNS? If yes, please explain why. If not, please explain why and what proposal modifications you believe are necessary.

No. Read Verisign's 10-Q, July 23, 2015 (p.29): "Under its new gTLD program, ICANN intends to recommend for delegation into the root zone a large number of new gTLDs potentially within a compressed timeframe. On October 23, 2013, NTIA began to authorize, and Verisign began effectuating, the delegation of the new gTLDs. In view of our role as the Root Zone Maintainer, and as a root operator, we face increased risks should ICANN’s delegation of these new gTLDs, which represent unprecedented changes to the root zone in volume and frequency, cause security and stability problems within the DNS and/or for parties who rely on the DNS. Such risks include potential instability of the DNS including potential fragmentation of the DNS should ICANN’s delegations create sufficient instability, and potential claims based on our role in the root zone provisioning and delegation process. These risks, alone or in the aggregate, have the potential to cause serious harm to our Registry Services business. Further, our business could also be harmed through security, stability and resiliency degradation if the delegation of new gTLDs into the root zone causes problems to certain components of the DNS ecosystem or other aspects of the global DNS, or other relying parties are negatively impacted as a result of domain name collisions, such as exposure or other leakage of private or sensitive information. Additionally, DNS Security Extensions (“DNSSEC”) enabled in the root zone and at other levels of the DNS require new preventative maintenance functions and operational practices that did not exist prior to the introduction of DNSSEC. Any failure by Verisign or the IANA functions operator to comply with stated practices, such as those outlined in relevant DNSSEC Practice Statements, introduces risk to DNSSEC relying parties and other Internet users and consumers of the DNS, which could have a material adverse impact on our business." http://files.shareholder.com/downloads/VRSN/368398346x0xS1014473-15-68/1014473/filing.pdf

7) Do you believe the proposal meets the needs and expectations of the global customers and partners of the IANA services? If yes, please explain why. If not, please explain why and what proposal modifications you believe are necessary. Please indicate if you are a customer or partner of the IANA services.

Yes, unless one or more "customers and partners of the IANA services" state differently during this comment period.

8) Do you believe the proposal maintains the openness of the Internet? If yes, please explain why. If not, please explain why and what proposal modifications you believe are necessary.

Yes, subject to the reservations expressed in #1 and #6 above.

9) Do you have any concerns that the proposal is replacing NTIA's role with a government-led or inter-governmental organization solution? If yes, please explain why and what proposal modifications you believe are necessary. If not, please explain why.

No.

10) Do you believe that the implementation of the proposal will continue to uphold the NTIA criteria in the future? If yes, please explain why. If not, please explain why and what proposal modifications you believe are necessary.

I think all of this is probably just a temporary iteration, necessary in order to end US government "oversight." After this is finished and implemented, I don't think anybody will mention or even consider "NTIA criteria" in the future.

11) Do you believe the ICG report and executive summary accurately reflect all necessary aspects of the overall proposal? If not, please explain what modifications you believe are necessary.

No modifications necessary, provided the provisions for transfer of the IANA trademarks and domain names to the IETF Trust (see numbers proposal) is implemented in a way that ICANN may continue to use the IANA marks and domain names as a licensee so long as it or its controlled entity and affiliate, PTI, performs IANA functions.

General Questions
12) Do you have any general comments for the ICG about the proposal?

ICG should steer clear of the CCWG-Accountability proposal even though the "names proposal" has "dependencies" that might be affected. That CCWG-Accountability process looked like a "rush job" from my close observation, and now the ICANN Board is engaged and proposing changes. I haven't seen any Board specifics, but in any event, that is not within ICG's remit (be thankful). I also agree with the sentiments expressed by Brian Carpenter (Submission ID: 2) in regard to #3 and #6:

• #3--"I don't see any way that ICANN itself is held accountable for the consequences of its policy decisions (e.g. creating large numbers of unnecessary gTLDs for no discernible motive except money)."
• #6--"I've been concerned since 1998 that unchecked expansion of the number of gTLDs will eventually take us into uncharted territory from a technical resilience point of view. I see no technical and operational feedback mechanism to protect us against this operational risk in the proposal."

Also, while I do not agree with some of the specifics, I am sympathetic to the frustration expressed in the comments submitted by Parminder Jeet Singh (Submission ID: 19).

-- John Poole, Editor, Domain Mondo

Read other comments submitted here.


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DISCLAIMER

IANA Trademarks and Domain Name, ICANN or IETF Trust?

ICANN video above: Alissa Cooper (IETF) - published on Jul 25, 2014 - Alissa Cooper discusses her representation of the Internet Engineering Task Force (IETF) on the IANA Stewardship Transition Coordination Group (ICG) during the group’s first meeting in London, 17-18 July 2014.

Note: this is a continuation of yesterday's post: IANA Transition: IANA Trademark and Domain Name Controversy Erupts.

[Disclosure: this background information and analysis has been provided by the Editor of Domain Mondo, John Poole (hereinafter "John"), who was also an observer of the CWG-Stewardship (observers are called "participants" in the CWG-Stewardship, as they are allowed to have a "voice" in the proceedings, but no "vote" in the consensus decision-making).]

As noted yesterday, Alissa Cooper (hereinafter "Alissa"), ICG co-chair, sent an email to CWG-Stewardship Friday, in which the "ICG requests that the CWG communicate back to us a proposed resolution to this issue by July 2 at 23:59 UTC." This issue being the transfer of the IANA trademarks and domain name to the IETF Trust as proposed by the Numbers community (RIRs/CRISP). The IETF Trust, is not affiliated with ICANN, and according to its website, its sole beneficiary is the IETF, also known as the "the Protocols community," represented by Alissa (see video above). The IETF has agreed to have the IETF Trust be the transferee of the IANA trademarks and domain name (iana.org) which are owned/registered in the name of ICANN. The two other key players in this whole saga are Greg Shatan (hereinafter "Greg"), IP attorney and IPC President, and Professor Milton Mueller (hereinafter "Milton"), who is a member of the ICG but also participates or contributes to the Names, Numbers, Protocols, and CCWG-Accountability mail lists, and has been active in ICANN since the late 1990s.

Here are the most relevant links (dates are all calendar year 2015):

February 23: [CWG-Stewardship] Proposed Design Team: IANA IPR, including IANA Trademark and Domain Name - Greg flagged the Numbers proposal to transfer the IANA trademarks as an issue to be addressed by the CWG-Stewardship on February 23, 2015, by way of his proposed Design Team G.

February 23: [CWG-Stewardship] Fwd: [Internal-cg] Numbers community response to question from the ICG: via Alissa, Numbers community rationale for transferring the trademarks and domain name from ICANN to the IETF Trust.

March 1-2: [CWG-Stewardship] Design team list: Greg responded to John's objection to Design Team G, after which, John concurred with Greg's statement: "To my mind, it's actually pretty simple -- the best place for the trademark (and thus the domain name) is the grantor/owner of the right to offer IANA services -- in the external trust model, it would be a trust asset; in the Contract Co. model, it would be Contract Co., in the internal models it would be ICANN. A third party owner doesn't make a lot of sense in any of our models."  John: "... I will defer to your and Jonathan's and Lise's [CWG-Stewardship co-chairs Jonathan Robinson and Lise Fuhr] wise judgment on how to best proceed on this--perhaps even the formality of a design team can be dispensed with--it sounds like you need to move quickly "to slow the train down." If so, do whatever is necessary..." [note: soon thereafter John withdrew from any active participation in the CWG-Stewardship].

So what happened to Greg's Design Team G? Nothing it appears--the CWG-Stewardship Wiki page indicates:

June 10: [CWG-Stewardship] drift in v5: Bill Manning and Milton catch the "draft language" that Greg inserted into the CWG-Stewardship proposal, which is the same language referred to by Alissa in her email of June 19, 2015.

June 10-11:  [CWG-Stewardship] drift in v5: Milton and Greg each express their respective positions which led to even more discussion by many people on the CWG-Stewardship mail list, including even John, who after reading the exchanges, contributed the historical context--[CWG-Stewardship] drift in v5--to which Greg replied with "thanks," and Milton responded that the historical trademark/domain name record was "not relevant" to which John responded (also explaining the importance of this issue for domain name registrants, trademark holders, and the global multistakeholder community). Thereafter Greg responded to Milton which left the CWG-stewardship proposal with the draft language to which the ICG responded Friday through Alissa.

postscript: Jonathan Robinson's (co-chair of the CWG-Stewardship) posting on June 11, 2015, is interesting:

Bill [Manning],
Two key points from my perspective:
1. There is urgency to send the proposal out to the chartering organisations but that does not in any way imply a lack of recognition to deal with this trademarks issue.
2. Lise and I have previously had meetings with the CRISP chairs. We have also had meetings with the ICG chairs group. The purpose of the meetings was primarily to ensure continuous updates on progress and current issues. We touched on the trademarks issue in a meeting with the ICG chairs yesterday. Clearly, there is now some more work to be done.

Jonathan

Yes, there is clearly "some more work to be done"--that may be the understatement of the year!

Domain Mondo doesn't know how the SO/ACs are supposed to approve a CWG-Stewardship proposal that isn't yet finished. Welcome to the Land of ICANN!

Domain Mondo UPDATE: ICANN Board and CWG address IANA Trademarks and Domain Name


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