Name: Francis Hopkinson
Submission ID: 105

Dear Icann,Please accept the attached public comment form.

Regards,

Francis Hopkinson

IANA Stewardship Transition Proposal - Public Comment Form
Disclaimer: The ICG will not use the information collected for any purpose other than analyzing publiccomments. Submitters’ names, affiliations, and comments will be public.

Identifying Information* Indicates required field

First Name *: Francis
Last Name *: Hopkinson
Email Address *: REDACTEDCountry/Economy: United States
Organization

Questions Concerning the Proposal as a Whole
1)

Completeness and clarity: Is the combined proposal complete? Each of theoperational community proposals contains aspects to be completed in the futurewhen the proposal is implemented. Is the combined proposal specified in sufficientdetail such that it can be evaluated against the NTIA criteria?

Comment: No, the combined proposal has significant gaps.
Gap 1: The domain names community proposal specifically defines ICANN as the organization
where the NTIA authority and responsibility would reside for the Domain Names Function. The
Numbers Community proposal says “This proposal will place the RIRs in the role currently
occupied by the NTIA” but it is not clear precisely to whom NTIA would transition its responsibilities
for the IP Numbers Function.
The Number Resource Organization (NRO) is an unincorporated consortia, made up exclusivelyof the 5 Regional Internet Registries (“RIRs”) but which, from a legal perspective, does not exist.
If NTIA were to delegate its responsibilities to an unincorporated entity there would be zeroaccountability for the entire IP Numbers Function. Therefore, since the NRO legally does not exist
and accountability is a cornerstone of the NTIA requirements, NTIA should not, or perhaps cannot,
transition its responsibilities to this unincorporated “organization”.
The RIRs are, by definition, regional registries. Each RIR has established control over a portionof the IP numbers in their region, controlled by their individual regional policies, and contractuallycontrolled by their individually unique service contracts. If NTIA were to transition responsibility
for a portion of the IANA Numbers Function to each individual RIR, it would truly be a“balkanization” of the IANA Numbers Function into 5 separate, autonomous regional functions
each with their own policies, processes, procedures, legal venues and applicable laws.
“Balkanization” of the IANA Numbers Function is both undesirable and incompatible with theprinciple of a unified global Internet. NTIA should not, or perhaps cannot, transition portions of its
responsibility for the IANA Numbers Function to the 5 individual regional registries located all overthe globe.

Alternatively, if NTIA were to transition its responsibilities for the entire IANA Numbers Function
to the 5 RIRs, regardless of which registry had what portion of the numbers in their region orservice contracts in place, then a whole host of other questions emerge. From an accountability
perspective, perhaps the most pressing question would be, who is actually accountable?
Fracturing accountability for a single IANA Function across 5 separate organizations, four of which
are outside the United States, each with its own policies, processes, procedures, legal venues
and applicable laws, would create accountability ambiguity and invite instability and insecurity.
Therefore, since fracturing the accountability for a single IANA Function across multiple
organizations would in effect remove accountability, NTIA should not, or perhaps cannot,
transition responsibility for the entire IANA Numbers Function to the 5 individual regional
registries.
If neither the NRO, nor the 5 separate RIRs for a portion each of IANA Numbers Function, nor all
5 individual RIRs for the entire IANA Numbers Function, are an acceptable answer, then precisely
to whom would NTIA transition its responsibility for the IANA Numbers Function?
Gap 2: The combined proposal is silent on how, or if, ICANN’s internal supporting community
organization roles and responsibilities will change post transition. For example, as proposed “theRIRs” would assume the oversight role of NTIA with regard to the Numbers Function in addition
to their existing roles as (1) the ICANN Address Supporting Organization (ASO) that provides
advice and guidance to the ICANN board on all matters related to IP numbers, creates global IP
number policies, and is empowered to select and appoint two ICANN board members, (2) the
individual regional policy making bodies, and (3) the exclusive regional providers of IP number
registry services. There is no separation of the Numbers Function oversight role, the role to selectthe Numbers Function Operator, the role to select and appoint two members of the ICANN board,
the role of the collective RIRs as the global policy body, the role of the individual RIRs as regional
policy bodies, and the role of the RIRs as the regionally exclusive providers of IP number registry
services. If, as proposed, the RIRs assume the oversight role of the NTIA then the RIRs would in
effect be sitting on both sides of the contract with ICANN, i.e., the party issuing the Functions
Operator contract and the contracted party supporting organization responsible for providing
recommendations to the board of ICANN for all IP number related matters and two (2) of theICANN board seats. In a legal analogy, the RIRs would simultaneously be judge, jury, prosecutor,
and counsel for the defendant. The combined multiple roles of the RIRs, would consolidate all
power over the IANA Numbers Function within the RIRs, eliminate any potential for independent
review of the performance or policies of the RIRs, and create serious conflict of interest throughout
the proposed governance model for the IANA Numbers Function. A similar, but less severe,situation would arise with regard to the Protocol Parameters Function for the Internet Engineering
Task Force (IETF). What are the organizational and operational changes within ICANN, orelsewhere in the governance model, which would occur to avoid the introduction of these serious
conflicts of interest?
Gap 3: The domain names community proposal specifically defines Post Transition ICANN (PTI)
as the Function Operator for the Domain Names Function. The numbers community and theprotocol parameters community both specify ICANN as the initial Function Operator for the othertwo IANA Functions. As proposed, initially there are two Function Operators i.e., PTI and ICANN.
There is no mention in the proposal about how ICANN and PTI would coordinate their activities
as the two initial Function Operators or resolve any conflicts that might arise. Furthermore, there
is no mention anywhere in the proposal on what the means or mechanisms for the coordination

of activities between three separate Function Operators would be if, after the initial Function
Operator contracts expire, the numbers community and/or protocol parameters community
selected an organization other than ICANN as the Function Operator. The absence of any planfor coordinating the activities of multiple Function Operators, and resolving any conflicts whichmight arise, is a serious omission.
Gap 4: There is a total absence of any details regarding the legal arrangement(s), mechanisms
and means by which the manager of the authoritative root zone file, which is presently Verisign,
would interact with multiple independent Function Operators when NTIA is no longer incontractual control of ICANN as the sole operator of the Protocol Parameters, Domain Names
and Numbers Functions. The proposal makes the enormous assumption that “somehow” therequired agreements and arrangements will occur to keep the heart of the Internet beating.
2)

Compatibility and interoperability: Do the operational community proposals work
together in a single proposal? Do they suggest any incompatible arrangements
where compatibility appears to be required? Is the handling of any conflicting
overlaps between the functions resolved in a workable manner?

Comment: The domain names community proposal specifically defines Post Transition ICANN(PTI) as the Function Operator for the Domain Names Function. The numbers community andthe protocol parameters community both specify ICANN as the initial Function Operator for theseother two IANA Functions. As proposed, initially there are two Function Operators i.e., PTI and
ICANN. There is no mention anywhere in the proposal how ICANN and PTI would coordinate theiractivities as the two initial Function Operators. Furthermore, there is no mention anywhere in the
proposal on what the means or mechanisms for the coordination of activities between three
separate Function Operators would be if, after the initial Function Operator contract expires, either
the numbers community or protocol parameters community selected an organization other than
ICANN as the Function Operator. The absence of any plan for coordinating the activities ofmultiple Function Operators, and resolving any conflicts which might arise, is a serious omission.
The ICG identified a potential compatibility issue regarding the IANA trademarks and the iana.org
domain name. The numbers proposal detailed specific requirements related to IANA intellectual
property, whereas the other two proposals are silent on this issue. The Patent and Trademarks
records indicate that the IANA Trademark is the property of ICANN. On the other hand, theregistration of the IANA.ORG domain name by ICANN, like all other domain names, is not theproperty of ICANN (or anyone else for that matter) but rather an exclusive right-of-use subject tothe terms and conditions of the registration service agreement. Armed with this knowledge it ispossible to intelligently address what legal arrangements must, or more accurately could, bemade with regard to these two particular assets and who would be the controlling party. There isa legal basis for enforcement of authority over the assets and a means for the commercial
enterprises in that chain of authority to protect themselves and the use of the assets.
Unfortunately, for a host of other critical assets over which NTIA presently has authority there isa great deal of ambiguity about who holds what rights. For example in the case of the Domain
Name System (DNS), NTIA has contractually delegated to ICANN the authority over the creationof new top level domains and the authority to contractually assign exclusive authority to Domain
Name Registries for particular top level domains. Did NTIA delegate that authority to ICANN
without the legal right to do so? Absolutely not. This strongly suggests that NTIA possesses thelegal rights to the DNS or, at a minimum, authority over the DNS (which in itself is a legal right).

Definitive confirmation of who holds what rights to the critical operational assets of the Internet,
e.g., the Domain Names System, IP numbers, the .arpa registry (and its component registries),
the root zone file, etc., is necessary to determined precisely what rights would be transitioned
from NTIA, intelligently address what legal arrangements must, or more accurately could, bemade with regard to these assets, and who would be the controlling party. Any ambiguity in thismatter would introduce serious litigation risk to all parties engaged in the operations of the Internet
as well as threaten the security and stability of the Internet. In any event, the absence of a clearly
articulated consistent plan regarding the intellectual property referenced in the proposal, andequally importantly the operational assets, is a serious omission.
3)

Accountability: Do the operational community proposals together include
appropriate and properly supported independent accountability mechanisms forrunning the IANA functions? Are there any gaps in overall accountability under the
single proposal?

Comment: There are significant accountability gaps in the proposal. None of the Transparency
and Accountability work, still on-going with ICANN, to prevent capture by a foreign government
and/or state-sponsored corporations, and to insure appropriate checks and balances of authority
are in place, has been undertaken with any of the RIRs or the Internet Engineering Task Force(IETF) which is a subsidiary organization of the Internet Society (ISOC). We would respectfully
submit that, in the interest of Internet security and stability, independent review and assessmentof the Transparency and Accountability of any and all organizations that would assume NTIA
responsibility as part of a transition should be a fundamental prerequisite requirement prior to anytransition.
There is no external audit process or procedure to verify that the RIRs, as the exclusive operatorsof the IP Number registry services, are conforming to, and are in compliance with, the global
and/or regional IP Number policies that have been established. There is no enforcement
mechanism, contractual or otherwise, to compel compliance with the policies of the community
and there are no penalties whatsoever for failure by an IP number registry to adhere to the global
or regional policies created. In summary, the operators of the IP number registries are not legallyor contractually accountable to the holders of IP number blocks, regardless of whether the number
block holders are RIR members or not, and there are no definition of services, or commitments toany standard of performance, for the operation of the IP number registries.
As proposed “the RIRs” would assume the oversight role of NTIA with regard to the Numbers
Function in addition to their existing roles as (1) the ICANN Address Supporting Organization(ASO) that provides advice and guidance to the ICANN board on all matters related to IP numbers
and creates global IP number policies, (2) the individual regional policy making bodies, (3) theorganizations empowered to select and appoint two ICANN board members, and (4) the exclusive
regional providers of IP number registry services. There is no separation of the Numbers Function
oversight role, the role to select and appoint two members of the ICANN board, the role of thecollective RIRs as the global policy body, the role of the individual RIRs as regional policy bodies,and the role of the RIRs as the regionally exclusive providers of IP number registry services. This
universal comingling of oversight, policy making and operations creates layers of obvious andfundamental conflict of interest within the RIRs. Moreover, due to the complete absence of any
independent oversight the RIRs are only accountable to themselves. In the interest of
Accountability and Transparency this must be resolved prior to any transition by NTIA.

An iron clad, irrevocable, legally binding commitment that the RIRs will never assume the role as
the Numbers Function Operator themselves would seem a necessary and appropriate safeguard
against the consolidation of all IANA Numbers Function roles within the RIRs. It should be notedthat the names community proposed creation of PTI was specifically motivated to avoid thecreation of similar concentration of power but less pervasive conflict of interest within ICANN (theproposed recipient organization for the NTIA responsibilities related to the Domain Names
Function).
4)

Workability: Do the results of any tests or evaluations of workability that were
included in the operational community proposals conflict with each other or raise
possible concerns when considered in combination?

No comments

Questions Concerning NTIA Criteria
5)

Do you believe the proposal supports and enhances the multistakeholder model?
If yes, please explain why. If not, please explain why and what proposal
modifications you believe are necessary.

Comment. No, the proposal does not enhance the multistakeholder model. Within the Numbers
Function proposal there is no provision for the tens of thousands of holders of over 25% of the
IPv4 numbers, i.e., more than a billion numbers, to have any voice in the governance of the
Numbers Function. The recipients of IPv4 number blocks allocated prior to the creation of theRIRs, which are not members of an RIR, are denied any representation in the proposed
governance model. In fact, the RIRs have not proposed any end-user representation in thegovernance model for the Numbers Function.
The RIRs have not proposed any RIR independent oversight or appeals body which is perhaps
understandable since there is also no commitment by the RIRs to the accuracy of the IP number
registries they operate or any performance standard by which they could be measured or held
accountable. At present, and as proposed, there is no external audit process or procedure toverify that the RIRs, as the exclusive operators of the IP Number registry services, are conforming
to, and are in compliance with, the global and/or regional IP Number policies that have been
established. There is no enforcement mechanism, contractual or otherwise, to compel compliancewith the policies of the community and there are no penalties whatsoever for failure by an IP
number registry to adhere to the global or regional policies created. In summary, the operators of
the IP number registries are not legally or contractually accountable to the holders of IP number
blocks, regardless of whether the number block holders are RIR members or not, and there are
no definition of services, or commitments to any standard of performance, for the operation of the
IP number registries. At an absolute minimum, this lack of accountability must be corrected prior
to any transition of responsibilities from NTIA.
The RIRs are not, individually or collectively, parties to the Affirmation of Commitments (AOC)
and have not proposed any mechanism or means for the introduction of accountability orcompetition, to themselves, for IP number registry services. In summary, the Numbers Function
proposal limits the governance power over IP number blocks to only the RIRs and artificially limits
the participation in the governance to only the stakeholders which are RIR members. At aminimum the Numbers Function proposal should include RIR independent oversight, an RIR

independent appeals body, RIR performance metrics, a commitment to the AOC, and a means
for meaningful participation by end-users that are not RIR members.
6)

Do you believe the proposal maintains the security, stability, and resiliency of the
DNS? If yes, please explain why. If not, please explain why and what proposal
modifications you believe are necessary.

Comment: As proposed “the RIRs” would assume the oversight role of NTIA with regard to the
Numbers Function in addition to their existing roles as (1) the ICANN Address Supporting
Organization (ASO) that provides advice and guidance to the ICANN board on all matters related
to IP numbers and creates global IP number policies, (2) the individual regional policy making
bodies, (3) the organization empowered to select and appoint two ICANN board members, and(4) the exclusive regional providers of IP number registry services. There is no separation of the
Numbers Function oversight role, the role to select and appoint two members of the ICANN board,
the role of the collective RIRs as the global policy body, the role of the individual RIRs as regional
policy bodies, and the role of the RIRs as the regionally exclusive providers of IP number registry
services. This universal comingling of oversight, policy making and operations creates layers ofobvious and fundamental conflict of interest within the RIRs which, in the interest of the security,
stability and resilience of the Internet, must be resolved prior to any transition by NTIA. It should
be noted that the names community proposed creation of PTI was specifically motivated to avoid
the creation of similar concentration of power but less pervasive conflict of interest within ICANN.
7)

Do you believe the proposal meets the needs and expectations of the global
customers and partners of the IANA services? If yes, please explain why. If not,please explain why and what proposal modifications you believe are necessary.
Please indicate if you are a customer or partner of the IANA services.

No comments
8)

Do you believe the proposal maintains the openness of the Internet? If yes, please
explain why. If not, please explain why and what proposal modifications you believe
are necessary.

No comments
9)

Do you have any concerns that the proposal is replacing NTIA's role with agovernment-led or inter-governmental organization solution? If yes, please explain
why and what proposal modifications you believe are necessary. If not, please
explain why.

Comment: The proposal does raise serious concerns in that it completely fails to address somevery significant concerns. None of the Transparency and Accountability work, still on-going withICANN, to prevent capture by a foreign government and/or state-sponsored corporations, and toinsure appropriate checks and balances of authority are in place, has been undertaken with anyof the RIRs or the Internet Engineering Task Force (IETF) which is a subsidiary organization of
the Internet Society (ISOC). We would respectfully submit that, in the interest of Internet security
and stability, independent review and assessment of the Transparency and Accountability of any
and all organizations that would assume NTIA responsibility as part of a transition should be afundamental prerequisite requirement and the recommendations implemented prior to anytransition of NTIA responsibility. Absent an independent review and assessment of theTransparency and Accountability of the RIRs, and the IETF, it is not possible to respond to thequestion asked or provide concrete suggestions for proposal modification.
10)

Do you believe that the implementation of the proposal will continue to uphold the
NTIA criteria in the future? If yes, please explain why. If not, please explain why andwhat proposal modifications you believe are necessary.

No comments

Questions Concerning ICG Report and Executive Summary
11)

Do you believe the ICG report and executive summary accurately reflect allnecessary aspects of the overall proposal? If not, please explain what modifications
you believe are necessary.

No comments

General Questions
12)

Do you have any general comments for the ICG about the proposal?

No comments