Bret Fausett's blog has cast new light on the ICANN JPA question. Many of us had assumed that the JPA was a replacement for the earlier, more prescriptive Memorandum of Understanding between ICANN and the US Commerce Department. The MoU was first drafted in November 1998 and was amended six times from 1999 to 2003. Ending the JPA, it is widely assumed, would eliminate all forms of Commerce Department oversight over ICANN's policy making and leave in place only the more important IANA contract, which is completely separate from the JPA/MoU.
Doubts are now raised about this assumption.
As IGP warned an uncomprehending press corps back in 2006, the shift from MoU to JPA was much less of a “dramatic step” away from US control than ICANN's PR effort made it out to be. Now, if Fausett is right, it appears that getting rid of the JPA is less important than ICANN is making it out to be.
It all depends on what we mean by “the JPA.”
According to Fausett, the JPA is more accurately referred to as “Amendment 7” to the pre-existing MoU. Its checklist of policy guidance items merely replaced sections V.B and V.C of the old MoU. Fausett has prepared a compiled MoU with all the amendments. Only the blue parts constitute the JPA-related amendments. To Fausett ending “the JPA” only ends the amendments to the overall MoU agreed in September 2006. While eliminating those amendments would reduce somewhat the detail of Commerce Dept oversight, a substantial part of the MoU would remain in place. The most important and controlling part of the MoU is a list of “ADDITIONAL RESPONSIBILTIES UNDER AMENDMENT 1” at the end. These all have to do with the registry and registrar contracts on which the ICANN regime is based. An especially interesting “additional responsibility” (#5) says:
“5. If the DOC withdraws its recognition of ICANN or any successor entity by terminating this
MOU, ICANN agrees that it will assign to the DOC any rights that ICANN has in all existing
contracts with the registries and registrars, including any data escrow agreement(s) between
VeriSign and ICANN with respect to the .com, .net, and .org registries.”
What's important about this paragraph is not just the transfer of important contractual rights from ICANN to DoC upon termination of the MoU, but also other clauses in the MoU pertaining to the relationship between VeriSign and ICANN and DoC.
I on the other hand believe the term JPA refers to the MoU as a whole, and that the relevant issue we are debating now is an end to the entire JPA/MoU. The main reason to take this view is that the JPA itself, even if it is conceived as an “amendment”, refers to the entire document as a “Joint Project Agreement” and not as a MoU. Thus, “ending the JPA” means “terminating the MoU.” It is possible, I would hope, for Commerce and ICANN to agree to end the JPA/MoU when it expires in September 2009, and for both parties to agree NOT to assign to the Commerce Department all of its rights in registry and registrar contracts when that happens.
If Fausett is right and the debate over “ending the JPA” is only about striking the last round of modifications made to the MoU in 2006, then the whole debate takes on the characteristics of a deceptive charade. It's certainly not worth losing any sleep over whether those clauses from 2006 remain or not. Commerce would retain substantial oversight authority over and above the IANA contract. ICANN would still need to report to Commerce. ICANN is publicly framing this as a move toward “independence” from an important aspect of US oversight, but if Fausett's interpretation is right, its request to “end the JPA” is nothing more than a request to eliminate a few clauses in its agreements – and not the most important ones. The only conceivable purpose for such a request would be to allow both ICANN and the US government to create a facade of greater independence while nothing major really changed. As critical as I am of both ICANN and NTIA, I find it difficult to believe that they would engage in this level of duplicity.
So if I am right and “ending the JPA” means ending the whole MoU, then we have a more important and substantial change on our hands. But that also means that those pesky “ADDITIONAL RESPONSIBILTIES UNDER AMENDMENT 1” need to be re-thought.
Following is a message I posted on the GNSO Council list, back in November 2006. It rather stroke me that nobody else seemed to notice this back then. Only Marilyn replied, saying: “I believe the initial agreement was called… Joint partnership
agreement, but the staff can verify that.”
> Date: Wed, 22 Nov 2006 20:44:40 -0800 (PST)
> From: Mawaki Chango
> Subject: [council] The Joint Project Agreement… that of
> 2006!
> To: Council GNSO
Bruce, Denise, Dan – or whoever can authoritatively help clarify the
following:
While reading the document titled “Joint Project Agreement Between
the U.S. Department of Commerce and the Internet Corporation for
Assigned Names and Numbers” signed by John M.R. Kneuer for NTIA and
Dr. Paul Twomey for ICANN on September 29, 2006, and retrieved from
http://icann.org/general/JPA-29sep06.pdf, I note:
The Preamble starts reading: “The U.S. Department of Commerce
(Department) has an agreement (the Joint Project Agreement) with the
Internet Corporation for Assigned Names and Numbers (ICANN)…”
Subsequently, all the section headers make reference to the JPA in
these terms: “To strike the Section […] from the Joint Project
Agreement in its entirety” and to substitute or replace, as in I, II
and III, and finally in IV, it states: “Except as specifically
modified by this document, the terms and conditions of the Joint
Project Agreement remain unchanged.”
My questions are:
1) Is there any Joint Project Agreement other than “this document” as
it seems per all the four section headers in the current document?
2) If such other Agreement, complete and comprehensive of all
provisions currently executed, exists between the U.S. Department of
Commerce and ICANN, is there anywhere it can be found and accessed by
the public, or is it meant to remain private?
3) Otherwise, what is being referred to here as a “Joint Project
Agreement” from which sections are striken to make the current
Agreement? As far as I know, the previous contractual document
between the two parties was a Memorendum of Understanding. And after
a check, I have noted that the initial MoU of 1998 does include all
the sections required to be striken (V.B, V.C, and VII) and replaced
by amendments made in the new document. So my best guess is that it
is the 1998 MoU that the current Agreement refers to in its body as
“Joint Project Agreement” (please advised.)
4) Then the question that comes to mind is what is objectively the
difference, and what difference does it make, for both the U.S.
Department of Commerce and ICANN to call their agreement a “Joint
Project Agreement” or a “Memorendum of Understanding”? If there is,
then was there any prior act that requalified the 1998 MoU as a JPA?
Thank you in advance for your assistance.
Regards,
Mawaki