Hi Greg,
Thanks for taking the time to respond.
My understanding is that the objective of the principal terms was to establish a direction for the agreements, but not that any party had agreed to incorporate specific words from the terms into the agreements themselves. Indeed, if the objective of the principal terms had been to establish contractual language, we could have skipped the development of the terms altogether and jumped right into the development of the contractual language, which is what we are doing now.
Relatedly, if someone could point out the public posting of the final terms document, that would be helpful to ensure we’re all referencing the same version. I have been referencing <
https://www.ietf.org/proceedings/95/slides/slides-95-ianaplan-0.pdf> as
I can’t seem to find any reference point where all of the parties agreed that the terms document was settled. To my eye, both the first draft of the community agreement as circulated by the Trust and the edited version as circulated by the CWG are aligned with the spirit of the terms. So the space in which we need further discussion is actually not about discrepancies between the agreements and the terms, but between different ideas about how the terms can be fulfilled.
Now, as to the relationship between the CCG and the Trust, the CWG proposed the following language in 3.1:
"Accordingly, the IETF Trust agrees, as set forth below, to seek the advice and consent of the CCG with respect to all matters concerning the IANA Intellectual Property.”
So, this requires the Trust to seek the consent of the CCG about every matter relating to the IANA IPR. Interpreted strictly, this puts the CCG in control of the Trust’s actions related to the IANA IPR, because the Trust cannot take any action, no matter how trivial, without obtaining the consent of the CCG. Can the Trust send email to the IFO about the IPR without the CCG’s consent? Can the Trustees email each other about the IANA IPR without the CCG’s consent? Can the Trust renew the IANA domain registrations without CCG consent? If people wanted to interpret the edited provision in 3.1 strictly, I think they would have a basis to say no to all of these questions. And if that were the case, I imagine that the effectiveness of the Trust would be hamstrung, since it would essentially need to await the consensus of the CCG at every turn. This is why I wonder, if the intent is for the Trust to await the consent of the CCG on every matter, what the point of using the Trust is. The other sections I listed provide examples where approvals are required, but there is no limitation listed anywhere that I could find to draw a boundary around this consent provision in 3.1.
As to the notion of directing the Trust’s activities, I think it’s important to understand the nature of how the Trust operates. Trustees are volunteers who agree to commit their time to this task in service of the Internet. The work of the Trust is a part-time activity for which the nomcom every year works hard to find willing volunteers (via appointments to the IAOC and the IAB). Adding the IANA IPR responsibilities may increase that workload, although there is no practical reason why that increase should be substantial. However, under a scenario where the CCG requests volumes of new registrations in multiple different jurisdictions (3.4), together with the requirement for proactive politicing across all of those jurisdictions (3.5), the IANA-related work of the Trust could conceivably morph into a much more heavyweight set of duties. This could impact the Trust’s other responsibilities and the ability for the nomcom to find willing volunteers, and therefore the viability of the Trust itself. If the Trust was left with more discretion over its own activities than what the edited 3.4 allows, I think this would be less of a concern for the IETF community.
Regarding oversight and accountability, the CWG proposed the following language in 3.1:
"However, the IETF Trust recognizes that, solely with respect to its stewarship of the IANA Intellectual Property, it acts under the oversight of the Operational Communities and is accountable to those Operational Communities.”
In the scenarios that I can imagine, it is not really feasible to hold a Trustee accountable and have that act effect only the IANA IPR-related duties for that Trustee. For example, if the names community were to seek the removal of a nomcom-appointed Trustee, clearly that would have an effect on all of that Trustee’s duties, not just the ones related to IANA IPR. Furthermore, any mechanisms the CWG suggests to exercise oversight over the Trust and to hold it accountable would have to be consistent with existing nominations and recall procedures for the IAOC. Removing a nomcom-appointed Trustee, for example, would need to use the RFC 7437 procedures. As a result, I don’t know how to square the implications of this text with existing agreement in this group that the Trust will not be modified. Alternative or additional oversight and accountability procedures would necessarily need to obtain IETF consensus since they would affect the IETF Trustees.
Regards,
Alissa