[cooperation-wg] Key elements of the transition of IANA stewardship

NOTE: this message has been cross-posted individually to the RIR mailing
lists dealing with this issue.

Here are some things that appear to me to be key elements for the transition
of the IANA stewardship.

At present, the "RIRs are an interested and affected party of the IANA
contract because IANA holds ultimate responsibility for allocated and
unallocated IPv4, IPv6 and Autonomous System Number address spaces. IANA
delegates IP and ASN address blocks to the RIRs on a needs-based approach
according to global policies agreed by all the Regional Internet Registries
(RIRs). The “global policy development process” is described in the ICANN
Address Supporting Organization (ASO) memorandum of understanding. ICANN and
the Number Resource Organization (NRO) signed this MoU in 2004. The NRO is
an unincorporated organization created in 2003 as a coordination mechanism
for the RIRs. The NRO fulfills the role, responsibilities and functions of
the ASO as defined within the ICANN Bylaws." (This is a citation from the
document at:

 https://blog.apnic.net/wp-content/uploads/2014/09/NRO-RELATIONSHIP-IANA.pdf
 )

The Mou between ICANN and the NRO is at:

 https://aso.icann.org/about-the-aso/aso-memorandum-of-understanding/

That MoU specifies how ICANN's ASO is constituted and provides that "Under
this agreement the ICANN Board will ratify proposed global policies in
accordance with the Global Policy Development Process, using review
procedures as determined by ICANN."

Thus, the ICANN Board has ultimate responsibility for IP address policies.
This is consistent with the ICANN Bylaws.

Up to now, under the IANA functions contract with the NTIA, ICANN was
clearly bound to defer to the RIRs for what concerns IP address policies.

If there is no contract between ICANN and some external entity, then ICANN
would have unrestricted ultimate authority over IP addresses.  That is, the
ICANN Board could, if it considered it appropriate, override RIR policies.

This puts too much power in the ICANN Board which, under ICANN's current
structure, is not accountable to any external entity.

It would appear desirable that the IANA functions should be contracted for
by the
served communities, that is, by the NRO/RIRs for what concerns IP addresses.

And indeed the draft proposal presented by APNIC on 8 September 2014
envisages a Service Level Agreement between ICANN and NRO and also a
non-binding Affirmation of Committments between ICANN and NRO.  These
proposals are found in the slide show contained in the web page at:

  http://blog.apnic.net/2014/09/08/iana-session-apnic-38-a-discussion-propos
al/

But a non-binding Affirmation of Committments, coupled with a Service Level
Agreement, are not the equivalent of a contract for the IANA functions.

Thus, it would appear more appropriate to adopt the same approach that has
been adopted by the IETF regarding protocol parameters, namely a Memorandum
of Understanding (which appears to be a contract) between the NRO and ICANN
for the IP addresses.  The Memorandum of Understanding between ICANN and the
IETF is at:

  https://www.icann.org/resources/unthemed-pages/ietf-icann-mou-2000-03-01-e
n

and

  http://tools.ietf.org/html/rfc2860

That text could easily be modified to refer to NRO and IP addresses instead
of IETF and protocol parameters.

However, item 4 of the text should be modified so that it reads as follows:

"4. Agreed technical work items.  ICANN agrees, notwithstanding any
provisions in its Bylaws or other corporate documents that might be
construed differently, that during the term of this MOU it shall cause IANA
to comply ..."

In addition, consideration should be given to adding a choice of law clause
and a dispute resolution clause, presumably referring to arbitration rather
than to national courts.

There was extensive discussion (but no agreement) on the IANA Transition
mailing list regarding whether or not the fact that a US court could, in
theory, order ICANN/IANA to do something contrary to agreed community
policies is an issue and, if so, whether anything should be proposed to deal
with that issue, such as proposing that the entity that performs the IANA
function should have immunity of jurisdiction, or that the entity should
have redundant sites in more than one jurisdiction.

If there is support for dealing with that issue, then some text could be
added.

Finally, and in addition to the above, article I.1 of the ICANN Bylaws
should be modified to make it clear that it is the NRO that has the overall
responsibility for the coordination and allocation and assignment of IP
addresses.  That change is needed because, at present, article I.1 of the
ICANN Bylaws implies that ICANN has the overall responsibility for the
coordination and allocation and assignment of IP addresses.

Best,
Richard