Name: Desiree Boxberger

Organization: Dot Latin LLC, the .UNO Domain Name Registry

Submission ID: 79

I received a 404 error when trying to submit comments via the online submission form
(https://www.ianacg.org/calls-for-input/combined-proposal-public-commentperiod/iana-stewardship-transition-proposal-call-for-public-commentclosed/). Therefore, I am submitting my comments via email.

Thank you.

Sincerely,
Desiree Boxberger
VP, Registry Operations, Policy & Compliance
Dot Latin LLC, the .UNO Registry
208 W. 19th Street
Kansas City, MO 64108
Phone: REDACTED
Email: REDACTEDWebsite: www.nic.uno

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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 Desiree
Last Name Boxberger
Email Address REDACTEDCountry/Economy U.S.A.
Organization Dot Latin LLC, the .UNO Domain Name Registry

Questions Concerning the Proposal as a Whole1)

Completeness and clarity: Is the combined proposal complete? Each of the operational
community proposals contains aspects to be completed in the future when the proposal
is implemented. Is the combined proposal specified in sufficient detail such that it can beevaluated against the NTIA criteria?

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

3)

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

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?

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 youbelieve are necessary.

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.

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 whyand what proposal modifications you believe are necessary. Please indicate if you are acustomer or partner of the IANA services.

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 arenecessary.

9)

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

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 and what
proposal modifications you believe are necessary.

Questions Concerning ICG Report and Executive Summary
11)

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

General Questions12)

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

Under 15 U.S.C. 1525, the U.S. Department of Commerce (“DOC”) should not
exercise Joint Project Authority (“JPA”) with ICANN for the IANA transition andshould instead follow statutory and regulatory requirements relating to theaward of procurement contracts in relation to the delegation of the IANA
function away from the National Telecommunications and Information
Administration (“NTIA”). The DOC should not be allowed to sole source boththe DNS and the IANA functions to the same entity, namely the Internet
Corporation for Assigned Names and Numbers (“ICANN”) and should diversify
control of the Internet architecture to prevent capture. The IANA functions
serve as a key component of the Internet architecture with widespread global
impacts. Contract diversity is necessary for a global resource such as theInternet. The U.S. Government, Internet Stakeholders and the Internet
Community as a whole cannot afford to allow ICANN or any other single entity
to possess both the naming and numbering functions of the Internet where it
could fall prey to undue influence by foreign governments or allow suchcorruption to take hold and control the global Internet resource we all come torely on in our day to day businesses and personal lives. To do so, would provecatastrophic to governments, the public, businesses and economies
worldwide.

As recently seen in the DCA Trust v. ICANN (.AFRICA) Independent Review
Process, I hope you will find the following quotes as troubling as I do:“As set out in Article IV (Accountability and Review) of ICANN’s Bylaws, incarrying out its mission as set out in its Bylaws, ICANN should be accountable tothe community for operating in a manner that is consistent with these Bylaws andwith due regard for the core values set forth in Article I of the Bylaws1”“In this IRP, among the allegations advanced by DCA Trust against ICANN, isthat the ICANN Board, and its constituent body, the GAC, breached theirobligation to act transparently and in conformity with procedures that ensured
fairness. In particular, DCA Trust criticizes the ICANN Board here, for allowing
itself to be guided by the GAC, a body “with apparently no distinct rules, limited
public records, fluid definitions of membership and quorums” and unfair
procedures in dealing with the issues before it2”

“ARBITRATOR KESSEDJIAN: So, basically, you're telling us that the GAC takes adecision to object to an applicant, and no reasons, no rationale, no discussion ofthe concepts that are in the rules?

THE WITNESS [Ms. Heather Dryden, former GAC Chair]: I'm telling you the GAC
did not provide a rationale. And that was not a requirement for issuing a GAC --3"

1Page 41, Article 97. https://www.icann.org/en/system/files/files/final-declaration-2-redacted-09jul15-en.pdf

2Page 41, Article 99. https://www.icann.org/en/system/files/files/final-declaration-2-redacted-09jul15-en.pdf

3Page 45, Article 104, Witness Testimony of former Government Advisory Committee (“GAC”) Chair, Ms. Heather Dryden.
https://www.icann.org/en/system/files/files/final-declaration-2-redacted-09jul15-en.pdf

“The Panel understands that the GAC provides advice to the ICANN Board on
matters of public policy, especially in cases where ICANN activities and policies
may interact with national laws or international agreements. The Panel alsounderstands that GAC advice is developed through consensus among membernations. Finally, the Panel understands that although the ICANN Board isrequired to consider GAC advice and recommendations, it is not obligated tofollow those recommendations4”“In light of the clear “Transparency” obligation provisions found in ICANN’s
Bylaws, the Panel would have expected the ICANN Board to, at a minimum,
investigate the matter further before rejecting DCA Trust’s application5”“…the Panel is unanimous in deciding that DCA Trust is the prevailing party inthis IRP and ICANN shall bear, pursuant to Article IV, Section 3, paragraph 18 ofthe Bylaws, Article 11 of Supplementary Procedures and Article 31 of the ICDRRules, the totality of the costs of this IRP and the totality of the costs of the IRP
Provider6”“…the Panel declared that both the actions and inactions of the [ICANN] Board
with respect to the application of DCA Trust relating to the .AFRICA gTLD wereinconsistent with the [ICANN] Articles of Incorporation and Bylaws of ICANN.7”
ICANN has yet to conform to the U.S. Department of Commerce Affirmation ofCommitments (“AOC”) and they have had over five years to do so. On thesurface, ICANN would desire everyone believe that they are an open,accountable and transparent organization but those who interact with ICANN
on a routine basis, understand otherwise. For ICANN to be open, accountable
and transparent would subject them to increased liability for their actions orinactions.
4Page 53, Article 111. https://www.icann.org/en/system/files/files/final-declaration-2-redacted-09jul15-en.pdf

5Page 53, Article 113. https://www.icann.org/en/system/files/files/final-declaration-2-redacted-09jul15-en.pdf

6Page 61, Article 144. https://www.icann.org/en/system/files/files/final-declaration-2-redacted-09jul15-en.pdf

7Page 61, Section V, Declaration of the Panel, Article 148. https://www.icann.org/en/system/files/files/final-declaration-2-redacted-09jul15en.pdf

In 2002, ICANN purposefully amended their Bylaws to omit any members sothat the Board would retain ultimate authority over ICANN. ICANN’s current
Bylaws state:

ARTICLE XVII: MEMBERSICANN shall not have members, as defined in the California Nonprofit Public
Benefit Corporation Law ("CNPBCL"), notwithstanding the use of the term
"Member" in these Bylaws, in any ICANN document, or in any action ofthe ICANN Board or staff.8
From a governance perspective, this purposeful act concentrated ultimate
power in the ICANN Board. Under California Corporations Code §5310, it
provides:(a) A corporation may admit persons to membership, as provided in its articles
or bylaws, or may provide in its articles or bylaws that it shall have no members.
In the absence of any provision in its articles or bylaws providing for members,
a corporation shall have no members.
(b) In the case of a corporation which has no members, any action for which
there is no specific provision of this part applicable to a corporation which has
no members and which would otherwise require approval by a majority of all
members (Section 5033) or approval by the members (Section 5034) shallrequire only approval of the board, any provision of this part or the articles orbylaws to the contrary notwithstanding.
(c) Reference in this part to a corporation which has no members includes acorporation in which the directors are the only members.

8ICANN Bylaws, Article XVII, Members,

https://www.icann.org/resources/pages/governance/bylaws-en/#XVII

In corporate “for-profit” entities, the board and the staff powers would bebalanced by the legal rights of stockholders, debt-holders, financial disclosures,and other legal remedies not applicable to a non-profit entity. As such, thecontroversies that have surrounded, and continue to surround ICANN, arebased on inadequate corporate governance and accountability mechanisms.
ICANN has yet to demonstrate, in any meaningful way, their ability to conformto the accountability and transparency requirements contained in the AOC
other than surface level measures to keep critics at bay and those changes wereimplemented at a glacial pace. At some point, ICANN’s continuous shielding ofaccountability and liability will be tested in a court of law as unenforceable. For
example, new gTLD applicants must pay $185,000 USD to apply for a gTLD
extension and waive all rights to sue ICANN and the only redress available toapplicants is through (1) the ICANN Ombudsman, who reports to and iscompensated by the ICANN Board; (2) a Reconsideration Request reviewed by
ICANN’s Board Governance Committee (“BGC”); and (3) an Independent Review
Process (“IRP”), which is very limited in scope and narrowly construed under
ICANN’s Bylaws. In order to have standing to bring an IRP, a new gTLD applicantmust prove that an ICANN Board action or inaction violated ICANN’s Articles ofIncorporation or Bylaws. ICANN has firmly held the position that new gTLD
applicants do not have standing to bring an IRP despite numerous IRP Panels
indicating otherwise. The IRP process is extremely expensive (typically in excessof $1M USD), takes approximately two years to resolve, and is a process which
is heavily weighted in ICANN’s favor. Many critics are opposed to the IRP as a
viable accountability mechanism since ICANN views the IRP outcome as merely“discretionary” upon the Board and not “binding” authority.
In the proposed framework for the IANA transition, the ICANN Board has beenadvised by their outside counsel (Jones Day) to oppose the Sole Member
model, as proposed by the Cross Community Working Group (“CCWG”), andpush for a “designator” model to continue to shield the Board from liability.
Jones Day cites9 section 5210 of the California Corporate Code, which states:
Subject to the provisions of this part and any limitations in the articles or bylaws
relating to action required to be approved by the members, or by a majority of9

http://regmedia.co.uk/2015/02/09/icann-accountability-jones-day-memo-7feb15.pdf

all members, the activities and affairs of a corporation shall be conducted and all
corporate powers shall be exercised by or under the direction of the board.

In order for ICANN to become accountable, they must be required torestructure from a California Not for Profit to a California For-Profit Corporationin order to allow community stakeholders, contracted parties and the public topursue proper legal redress for wrongdoing. Many have already called intoquestion ICANN’s Not for Profit status under the U.S. Tax Code.

Right is right and wrong is wrong. Those that wrong others should be held
accountable under established principles of law and not allowed to operate
behind a veiled curtain and shielded from liability as a non-profit, especially anentity that controls a global research such as the Internet.

Thank you.