The gulf of Tonkin: ICANN board responds to monopoly allegations

Our last blog post raised a significant amount of concern among people involved in the IANA stewardship transition. (This includes members of U.S. Congressional committees tracking the process.) A member of the ICANN board has responded to these concerns, but his response does not quell the controversy.

Bruce Tonkin, the Board Liaison to the CCWG on Accountability, sent the following statement to the CCWG list May 6:

Regarding the following statement posted in numerous lists:

“ICANN has verbally represented that they will reject any proposed agreement in which ICANN is not deemed the sole source prime contractor for the IANA functions in perpetuity.”

The ICANN Board supports the community processes that have been used to develop proposals for the IANA transition and ICANN’s accountability. ICANN also recognizes and accepts that the community will want to have fall back mechanisms in place should the IANA functions operator not perform its function to the standards required by the community. An important part of any system that focusses on security and stability is to document processes for handling any failures of the system.

The Board also supports the need for the ICG to coordinate the various transition proposals, and awaits the outcome of that process.

The Board will consider the recent reports from the CWG and CCWG that are open for public comment, and will raise any concerns it has in writing.   We urge other community members to focus on the documents produced by the cross-community working groups, and provide feedback to the cross-community working groups through the public comment process.

Regards,
Bruce Tonkin
Board Liaison to the CCWG on Accountability

Some people may find this reassuring. We don’t.

To begin with, Tonkin’s message does not deny that the statement was made by a member of its staff. (“ICANN has verbally represented that they will reject any proposed agreement in which ICANN is not deemed the sole source prime contractor for the IANA functions in perpetuity.”) Since the board of ICANN is certainly in a position to verify whether this happened, the statement comes very close to confirming Bill Woodcock’s allegation that ICANN legal did in fact say this to him.

Second, Tonkin’s statement does not repudiate the substance of the statement directly. Instead, it dances carefully around the issue of whether ICANN should have a presumptive monopoly on the performance of the IANA functions. The board merely “recognizes and accepts” that “the community will want to have fall-back mechanisms.” But what kind of fall-back mechanisms? Advocates of an ICANN monopoly have been saying for some time that we don’t need to change the operator of the IANA functions, we can just add more and more layers of oversight and review to fix any problems that might come up. Why didn’t Tonkin just come out and say, “if the primary users of the IANA functions want to change providers, ICANN accepts their right to do so?” Or how about saying, “if it is the consensus of the community (which it already is) that the IANA functions contracts should be subject to termination we will accept that.”

The last part of the statement is good in spirit, but still lacks a crucial element. Tonkin commits the board to raise any concerns it has with the CWG and CCWG proposals in writing through the public comment process. But what about the ICANN staff, and in particular its legal staff, who would be responsible for negotiating contracts with the operational communities for the provision of the IANA functions? To its credit, the board has always appeared to accept a stewardship transition process that is not under its direct control. But if the board is saying one thing and the staff is doing another, that’s not good. Veterans of ICANN process can attest to many incidents in which policies and process are driven by staff and not by the board.

In short, there is still a pretty big gulf between the Tonkin statement and the concerns of the people involved in the IANA stewardship transition.