Re: [IANAxfer@apnic] Key elements of the transition of IANA stewardship
Dear John,
Thank you for this and please see below.
Best,
Richard
> -----Original Message-----
> From: John Curran [mailto:jcurran@arin.net]
> Sent: vendredi, 12. septembre 2014 18:24
> To: rhill@hill-a.ch
> Cc: ianaxfer@apnic.net
> Subject: Re: [IANAxfer@apnic] Key elements of the transition of IANA
> stewardship
>
>
> On Sep 12, 2014, at 4:03 AM, Richard Hill <rhill@hill-a.ch> wrote:
>
> > What I was trying to say above is that, within the current IP address
> > allocation scheme, the ICANN Board has the ultimate authority.
>
> Incorrect.
>
> The ICANN Board (per agreement with the RIRs) has the authority to ratify
> global address policies that will be used by the IANA. That's
> not the same
> as "ultimate authority" over the current IP address allocation scheme.
Indeed it is a matter of vocabulary, please see the reponse that I just
posted in reply to David's very similar remark.
So I agree with your remarks below which I SNIP.
SNIP.
> > Yes, but as I recall the events, there wasn't really much
> choice, especially
> > not after the White Hose allegedly threatned legal action
> against an alleged
> > plan to move the root server.
>
> You are incorrect;
Since you were directly involved, I will defer to you.
SNIP
> > I think that an equivalent provision has to be
> > added somewhere, in the ICANN Bylaws and in a new MoU between
> the NRO and
> > ICANN.
>
> Indeterminate; presumes first that the IETF's existing RFC 2860
> isn't already
> sufficient for the purpose,
Indeed. I don't read it as you do, so I don't consider it sufficient.
>and second that there is some need to
> constrain
> ICANN further than provided for in the existing ASO/NRO
> agreements. It is a
> question worth discussing, but so far there does not seem to be a
> compelling
> argument either way.
I understand that you don't find the argument compelling, but I'm not
convinced that it is not necessary. So we can agreed to disagree.
>
> > Otherwise, when the IANA functions contract lapses, there would be no
> > written clause anywhere that says that the ICANN Board cannot
> make material
> > changes in the policies.
>
> The existing global policy development process (which cannot be changed
> except by agreement with the RIRs) only allows ICANN Board the ability
> to _request_ changes to the proposed policies (per MOU and attachment A)
> <http://archive.icann.org/en/aso/aso-mou-29oct04.htm>
> <http://archive.icann.org/en/aso/aso-mou-attachmentA-29oct04.htm>
Indeed, but, as I read it, the IANA functions contract restricts ICANN
further. But I suppose you don't read the IANA functions contract as I do.
>
> Richard - please take an opportunity to review these agreements
> when making
> statements such as "there would be no written clause anywhere
> that says that
> the ICANN Board cannot make material changes in the policies."; I believe
> doing so would save us all some significant time (and the
> accuracy of your
> responses to both myself and David might benefit substantially as
> a result.)
It is a matter of interpretation, and reasonable people can interpret
contract language differently.
>
> >> I can't actually imagine any of the involved organizations
> (NTIA, ICANN,
> >> IETF, or the RIRs) taking a position to the contrary simply to
> align with
> >> your theory (i.e. that ICANN is the "authority" for Internet
> >> number resource
> >> policy) but I would welcome you to directly inquire with any of
> >> them if you
> >> have any doubt.
> >
> > I thought that the purpose of these discussions, and of this
> mailing list,
> > was precisely to explore this sort of question.
>
> Indeed! I was offering you some additional options for your exploration.
Yes, and I do appreciate that.
>
> > ...
> >> Upon further review, you'll see that "ICANN" does not appear at all in
> >> the NTIA statement of IP numbering principles; this shouldn't be all
> >> that surprising because ICANN's very important role in
> providing overall
> >> coordination for the Internet's identifier systems does not equate with
> >> having "authority" over Internet number resource policy.
> >
> > So, in your view, the RIRs' agreeing that it is the ICANN Board that
> > ratifies their policies does not have any legal meaning or
> effect. You are
> > of course entitled to your views, as is everybody, but I don't
> agree with
> > that view.
>
> Interestingly enough, I actually have to worry full-time about
> questions such
> as the above, in insuring that ARIN is able to perform its
> mission, and it is
> my view that the present agreement between the RIRs and ICANN is
> sufficient
> even absent the NTIA IANA functions contract.
Noted.
>That said, it is
> still a change
> that is worthy of community consideration, since NTIA does today
> have extant
> control over the IANA function operator and that would change.
> You appear to
> be concerned that such a change will enable ICANN to exercise
> some form of
> latent "ultimate authority", but have yet to point out where such
> authority
> will originate from...
As discussed, the autority would not "orginate" anywhere. But if IANA
remains within ICANN, with its employees reporting to the ICANN Board, then
the ICANN Board can "order" IANA to do whatever it wants.
Of course the community would likely ignore an unacceptable "order". But
why not make it clear in the various Bylaws, MoUs, contracts, etc. that the
ICANN Board cannot do that?
>
> I have also clearly stated that reviewing the existing agreements is quite
> worthwhile at this point in time, as there may be some additional clarity
> desired. I frankly would be hesitant to put a statement in any agreement
> that says "the ICANN Board cannot make material changes in the policies"
> (nor a statement that reads "Richard Hill cannot make material changes in
> the policies") out of concern that someone might later misinterpret these
> as the sole constraints governing the situation.
Indeed such language would be totally inappropriate. If there is an
agreement in principle to clarify the existing language, then we can work
out specific language. If you go back to my original post, you will see
that I was proposing that ICANN and the NRO agree an MoU similar to RFC2860,
but with a change to section 4 of that MOU.
And I was proposing that the ICANN Bylaws be changed to make it clear that
it is the NRO that has the overall responsibility for the coordination and
allocation and assignment of IP addresses. If the principle is agreed, then
we can craft the appropriate legalese.
>I know risks of such are
> rather remote, but your recent conjectures have definitely opened my eyes
> in this respect.
As a noted jurist (maybe judge Learned Hand) said, the difficulty in
drafting legal text is not to draft a text that is consistent with your
intent; it is to draft a text that is inconsistent with any other intent.
In my view, the existing text is not sufficiently precise. And yes, it
won't necessarily be easy to draft new text, but we can try to do so if
there is agreement that it is worth trying.
>
> Thanks!
> /John
>
> John Curran
> President and CEO
> ARIN
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