Subject: [Ianaplan] who has fiduciary responsibility here, and what's the process

From: Miles Fidelman <[email-masked]>
Date: Sun, 14 Sep 2014 10:01:17 -0400

Folks,

As we discuss the shape of the post-NTIA future for IANA, and the IETF 
response the ICG's RFP - it occurs to me to ask two questions:

1. Who actually has the fiduciary responsibility to submit a response in 
IETF's name?

2. What is the ultimate process for framing and approving such a response.

To elaborate, just a bit:

- we're talking contractual matters here, not protocol standards - this 
is not the same as our well defined, documented, and understood process 
for RFPs evolving into standards

- the original MoU is signed by the IETF chair, the IAB chair, and 
ICANN; and operates within the overall context set by the NTIA-ICANN 
contract

- the most recent supplemental agreement is signed by the IETF 
Administrative Director, on behalf of the IAOC (and ICANN, of course)

We're talking about a new situation, where, potentially, where the role 
of the NTIA-ICANN contract is replaced by one or several 
contracts/agreements, as well as, perhaps, changes to organizational 
charters and by-laws, regarding the four sets of IANA functions:
(1) The coordination of the assignment of technical Internet protocol 
parameters;
(2) the administration of certain responsibilities associated with 
Internet DNS root zone management;
(3) the allocation of Internet numbering resources; and
(4) other services related to the management of the .ARPA and .INT 
top-level domains.

Where the line now signed by an NTIA contracts officer is replaced by 
signatures by one or more of organizations that include IETF, the RIRs, 
and so forth; and where references to the NTIA contract (e.g., in other 
contracts, agreements, by-laws, etc.) will have to be changed to 
reference new agreements.

Which brings us back to the questions:
- Where IETF is concerned - who/what is actually the party with 
fiduciary and contractual authority to execute these contracts (ISOC 
Chair, IAOC AD, IETF trust chair, IAB chair, IETF chair, somebody else)?
- What is the (or is there a) well defined process for a proposal to be 
generated and an agreement to be negotiated and executed?
- How does all that related to the discussions on this list, at IETF 
meetings, and so forth?

Given all the references here to the original MoU, "the ietf trust will 
have to weigh in," and so forth - I don't see a lot of clarity in how we 
actually get to a proposal to the ICG.  (It's also murky as to how the 
ICG will get from the to a consolidated proposal to NTIA - but at least 
there is some clearly defined set of players, groups, and outlines of a 
process.)

Anybody with some formal responsibilities re. IETF want to take a stab 
at this?

Miles Fidelman

-- 
In theory, there is no difference between theory and practice.
In practice, there is.   .... Yogi Berra

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 15 Sep 2014 08:14:12 +1200

> 1. Who actually has the fiduciary responsibility to submit a response in

"Fiduciary" is a big word for an outfit like the IETF, but last time
around nobody objected to the IETF Chair and the IAB Chair of the day
speaking in concert. (The IAOC didn't exist then.)

> 2. What is the ultimate process for framing and approving such a response.

RFC 2418 (WG process), RFC 2026 (IETF process), RFC 2850 (IAB process).

> - we're talking contractual matters here, 

If, and only if, a new contractual document is needed, RFC 4071 (IASA)
and if, and only if, it has new IPR aspects, RFC 4371 (IETF Trust)
would be relevant. However, the IASA and the Trust simply execute the
will of the IETF, so it's the WG/IETF/IAB process that matters.

I really don't see any mysteries here.

    Brian

---

From: Miles Fidelman <[email-masked]>
Date: Sun, 14 Sep 2014 17:07:37 -0400

> will of the IETF, so it's the WG/IETF/IAB process that matters.
First off, this is ALL about contractual matters - transitioning from 
the NTIA-ICANN contractual regime to a regime where that contract no 
longer exists.

Second, at least several people people here have opined that 'on matter 
x' the IETF trust would have to weigh in,' or words to that efffect (I 
guess I could go back and find exact messages and quotes, if it 
matters).  Others have talked about review by council.

And since when is "fiduciary" a big word when it comes to contractual 
matters regarding management of global infrastructure?

Miles Fidelman

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 15 Sep 2014 11:50:45 +1200

On 15/09/2014 09:07, Miles Fidelman wrote:
...
> the NTIA-ICANN contractual regime to a regime where that contract no

Since that contract did not and does not involve the IETF, I (as an
IETF participant) simply do not care.

> matters).

Yes, once the IETF has reached consensus about what it wants, the IETF
Trust may have to take some action as a result of that consensus.
As a former Trustee, I can assure you that the Trustees would not be
Trustee for very long if they took some action against the IETF's
consensus.

> Others have talked about review by council.

I have stated that we always get review by our counsel when we are
about to sign something. We also do that when we are about to
"speak" on a matter that clearly might have legal implications.
That's been SOP as long as my IETF memory extends (and I believe
we've only had two different lawyers that whole time, so there is
considerable institutional knowledge behind the legal advice we
receive).

So if the output from this WG needs legal review before approval, it
will get that review.

> matters regarding management of global infrastructure?

I've been on several boards that had fiduciary duty. IETF working groups,
the IAB, IESG and IAOC don't. The IETF Trust does have fiduciary duty *to the
IETF*. The ISOC Board naturally has fiduciary duty.

But I don't see why this WG should worry its head about that.

    Brian

---

From: Eliot Lear <[email-masked]>
Date: Mon, 15 Sep 2014 05:43:52 +0200

Miles,

On 9/14/14, 11:07 PM, Miles Fidelman wrote:
> Second, at least several people people here have opined that 'on
> matter x' the IETF trust would have to weigh in,' or words to that
> efffect (I guess I could go back and find exact messages and quotes,
> if it matters).  Others have talked about review by council.
>

It's the wrong word.  The IETF moves by rough consensus and running
code.  The IESG determines that consensus.  The IAB may from time to
time represent that consensus to others through our responsibilities to
manage liaison relationships.  Personally I think the question is out of
scope, by the way.

Eliot

---

From: Miles Fidelman <[email-masked]>
Date: Sun, 14 Sep 2014 23:58:23 -0400

> IETF participant) simply do not care.

Of course it involves the IETF - it's what directs ICANN to work with 
the IETF and provides the contractual context for the MoU.

I note that the WG charter specifically includes this statement:

"However, the mechanisms required to
address the removal of the overarching NTIA contract may require
additional documentation or agreements. The WG will identify, but
not create, such required agreements."

At least some of us are opining that such mechanisms are required.

I go on to note that the WG charter states as a specific goal: "The 
IANAPLAN working group is chartered to produce an IETF consensus
document that describes the expected interaction between the IETF and 
the operator of IETF protocol parameters registries." Which I assume 
will be the IETF response to the ICG RFP (or am I wrong here)?

Since the RFP specifically asks for a section on "Accountability and 
Oversight" to describe current mechanisms, and a section on "Proposed 
Post-Transition Oversight and Accountability Arrangements" - if this WG 
is not going to produce those sections, who is and by what process?

> But I don't see why this WG should worry its head about that.
See above, and I note that the charter goes on to say:

"Fully documenting the interaction between the IETF and the operator of 
IETF protocol parameters registries may require detailed terms 
ofagreements or other details of procedures that are normally delegated 
to and handled by the IAB or IAOC. The working group will not attempt to 
produce or discuss documentation for these details, but will request the 
IAB or IAOC to provide them separately. The WG shall seek the expertise 
of the IAB IANA Evolution Program to formulate its output. It is 
expected that members of the IAB IANA
Evolution Program will actively participate in the WG."

And ask the question:  how is this interaction with the IAB and/or IAOC 
and/or the IAB IANA Evolution Program, and is there a model for how 
these various activities come together to formulate an IETF response to 
the ICG RFP?

I go on to note that the WG charter states as a specific goal: "The 
IANAPLAN working group is chartered to produce an IETF consensus
document that describes the expected interaction between the IETF and 
the operator of IETF protocol parameters registries." Which I assume 
will be the IETF response to the ICG RFP (or am I wrong here)?

Miles Fidelman
Proposed  Post
-‐

Proposed  Post
-‐

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 15 Sep 2014 16:36:14 +1200

> the IETF and provides the contractual context for the MoU.

We disagree. From my personal experience with IANA staff before, during
and after the formation of ICANN and the signing of the various documents,
they continued loyally to do what the IETF requested them to do. There
was never a moment of doubt in anyone's mind that ICANN would work with
the IETF; they didn't need a contract from NTIA to do that.

> At least some of us are opining that such mechanisms are required.

And some of are disagreeing. But yes, it's quite possible that this
will be the consensus. I'm curious to know what problems they would
be solving (more on this below).

> the operator of IETF protocol parameters registries." 

Sure. I'm not sure that a citation of RFC 6220 won't suffice, but that
is an IAB document, so formally it doesn't represent IETF consensus.

> Which I assume

As I read it, draft-lear-iana-icg-response is a draft of the
IETF response, and it does cite 6220.

> is not going to produce those sections, who is and by what process?

Those are drafted in draft-lear-iana-icg-response already.

> these various activities come together to formulate an IETF response to

I assume that any such discussions will take place openly in this WG,
if there is consensus that any additional agreements are required,
which would require specific problems to be understood first. John
Curran's recent message is helpful in this regard.

    Brian

---

From: "Richard Hill" <[email-masked]>
Date: Mon, 15 Sep 2014 09:35:07 +0200

Please see below.

Thanks and best,
Richard

> -----Original Message-----
> From: Ianaplan [mailto:[email-masked]]On Behalf Of Brian E
> Carpenter
> Sent: lundi, 15. septembre 2014 06:36
> To: Miles Fidelman
> Cc: [email-masked]
> Subject: Re: [Ianaplan] who has fiduciary responsibility here, and
> what's the process
> 
> 

That's a different argument.  What Brian initially said is that the NTIA IANA functions contract does not involve NTIA.  Miles pointed out that, even though IETF is not a party to that contract, the contract does indeed involve IETF because it imposes an obligation on ICANN to implement certain IETF policies.

Brian now says that that is irrelevant, because ICANN would in any case have implemented the IETF policies.  This is no doubt correct regarding the situation in 1998, because the US government clearly stated the conditions under which it would grant the IANA function (which it claimed were "performed by, or subject to, agreements with agencies of the U.S. Government") to the "new corporation" which became ICANN.

I suppose that some people think that this will be the case even in the future, that is, that ICANN will always implement IETF policies, whether or not any contracts are in place.

But, "it's hard to make predictions, especially about the future" (attributed Alan Lamport, but I first heard it as being attributed to Casey Stengel).

So why not document clearly in writing that ICANN will always implement IETF policies?  And I recognize that some, including Brian, believe that the existing MoU does exactly that.  But not all agree.

I don't have any comments on what followed, so I SNIP it here.

SNIP

---

From: Milton L Mueller <[email-masked]>
Date: Mon, 15 Sep 2014 14:22:47 +0000

> From: Ianaplan [mailto:[email-masked]] On Behalf Of Brian E
> Carpenter
> 
> they continued loyally to do what the IETF requested them to do. There was
> never a moment of doubt in anyone's mind that ICANN would work with the
> IETF; they didn't need a contract from NTIA to do that.

I am sorry, but this strikes me as amazingly naïve. The presence of the US government was an overriding feature of the landscape from  1997 to 2000; there were serious political and legal consequences threatened and actuated against various parties. The idea that the USG's authoritative role had nothing to do with the willingness of a new, fledging ICANN corporation, created at ithe USG's invitation and formally recognized via a statement of policy, a MoU, and a contract,  to cooperate with the IETF during that time frame is just risible. 

I am disturbed by the unwillinesness of certain parties to pay attention to, and think seriously about, the surrounding institutional and political environment and the possibility for conflict or unaligned incentives over the long term. The authoritative role of the USG, which for better or worse played such a central role in the creation of the current arrangements, is going away. A very heavy burden of proof rests on those who believe that that nothing needs to change as a result. 

--MM

---

From: David Conrad <[email-masked]>
Date: Mon, 15 Sep 2014 08:26:16 -0700

Milton,

> I am sorry, but this strikes me as amazingly naïve. The presence of the US government was an overriding feature of the landscape from  1997 to 2000; there were serious political and legal consequen…

I’m curious: why do you completely disregard of both the history of the IANA function and the existing MOU between ICANN and the IETF with its supplemental agreements that have occurred since 2007?

> I am disturbed by the unwillinesness of certain parties to pay attention to, and think seriously about, the surrounding institutional and political environment and the possibility for conflict or u…

I do not believe the termination of the NTIA IANA Functions contract will have any material affect upon the IETF-ICANN MOU its supplemental agreements. Since you appear to believe it will, it might be helpful if you would explain exactly what you think that impact will be.

Regards,
-drc
(ICANN CTO, but speaking only for myself)

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 16 Sep 2014 12:12:55 +1200

On 16/09/2014 02:22, Milton L Mueller wrote:
>> -----Original Message----- From: Ianaplan
>> [mailto:[email-masked]] On Behalf Of Brian E 
>> Carpenter
>> 
>> We disagree. From my personal experience with IANA staff
>> before, during and after the formation of ICANN and the
>> signing of the various documents, they continued loyally to
>> do what the IETF requested them to do. There was never a
>> moment of doubt in anyone's mind that ICANN would work with
> I am sorry, but this strikes me as amazingly naïve. The
> presence of the US government was an overriding feature of
> the landscape from  1997 to 2000; there were serious
> political and legal consequences threatened and actuated
> against various parties. The idea that the USG's
> authoritative role had nothing to do with the willingness of
> a new, fledging ICANN corporation, created at ithe USG's
> invitation and formally recognized via a statement of policy,
> a MoU, and a contract,  to cooperate with the IETF during
> that time frame is just risible.

Clearly, I disagree. But then, I had discussed the matter
with Postel, Magaziner and quite a few other people directly
involved, so I suppose that gave me a false impression that
common sense was being applied by all concerned.

Existentially, once ICANN existed, it had no choice but
to cooperate with the IAB and IETF. Anything else would
indeed have been risible.

That's my last comment on this thread.

  Brian

> I am disturbed by the unwillinesness of certain parties to
> pay attention to, and think seriously about, the surrounding
> institutional and political environment and the possibility
> for conflict or unaligned incentives over the long term. The
> authoritative role of the USG, which for better or worse
> played such a central role in the creation of the current
> arrangements, is going away. A very heavy burden of proof
> rests on those who believe that that nothing needs to change
> as a result.
> 
> --MM