November 18, 2020
                 ++++++++++++++++++++++++++++++++++++
		 Open Root Server Confederation, Inc.
			  November 18, 2020
J. Beckwith Burr
Associate Administrator (Acting)
National Telecommunications and
Information Administration
United States Department of Commerce
Washington, D.C.  20230
Dear Ms. Burr:
On October 8, 1998, Open Root Server Confederation (ORSC) proposed a
structure for the new entity.  Our draft was based on 7+3 points as
defined in our cover letter and in the preamble to the bylaws.
On October 20, 1998, you sent a letter to Dr. Schorr asking ICANN to
consult with us and with the Boston Working group regarding the
following issues: accountability, transparency, transparent decision
making process, conflict of interest, and ccTLDs.
In response to your letter to Dr. Schorr, the ICANN Board has said on
November 6th that it "believes that it has taken the appropriate steps
to respond to the issues raised in your October 20 letter" to Dr.
Schorr.  The ORSC negotiating team disagrees with that assessment by
ICANN.  Unfortunately, no such steps have been taken.  The ORSC
negotiating team must report that our concerns remain unchanged.
ICANN has refused to change the most fundamental concepts necessary to
gain the consensus required for the award of the contract with the
United States Government.
This is the ORSC's formal response to ICANN's request that you move
forward with its proposal and bylaws.
We have reviewed the changes proposed under the latest draft and feel
that they fall short of the most basic of your requirements.  For
example, even in the covering letter there is no significant mention
of the first category:accountability.  ORSC agrees with NTIA that
accountability (both representational and fiscal) is of prime
importance.
We have prepared an analysis of what we asked for in the way of
changes, why we asked for it, and what changes (if any) have resulted.
A table of this material can be found at:
	<http://www.open-rsc.org/about/when/compare.html>
In addition, we have sought further clarification of the ICANN reasons
for the lack of change via private communication and at the open ICANN
meeting in Boston recently.
Last week we provided NTIA with preliminary comments on ICANN's
modified draft (version 6) and committed to participating in the
Boston ICANN meeting with the hope of seeing some movement on what we
consider to be critical issues to the Internet community.  Our
conclusion after the meeting is that the ICANN board has failed to
meet even the threshold of required accountability described in the
White Paper and reiterated by Ira Magaziner during the IFWP process
(and elsewhere), and in your NTIA letter to Dr. Schorr.
We define accountability as much more than the ability of the
"membership" to elect (and remove) only 9/19th of the board, while the
another 9/19th are elected (or removed) by the the Supporting
Organizations (SOs) and the 19th member is the ICANN President who is
appointed by the Board.
Accountability encompasses:
	* full membership structure
	* due process
	* fair hearing panels
	* fiscal accountability
	* transparency so the above are useful 
          (can't complain if you don't know about it)
	* on-record voting
During the recent board meeting in Boston, we raised these issues.
What we got back (essentially) was:
	* accountability costs money...
	* transparency will prevent the board 
          from acting in our best interests 
          and it costs too much...
We feel that these are perhaps valid concerns, but not subjects that
the board should be deciding for the Internet community.  If there is
a cost associated with accountability (as implied by some board
members), we believe that "members" and the public should be informed
so they can make an informed choice.  The White Paper mandate was
clear.  ICANN's responses, and subsequent failure to address that
mandate requires that it be removed from the US Government contract
award process unless it immediately and decisively rectifies its lack
of openness, transparency, and accountability.
Similarly, ORSC (and others) have raised the issue of transparency in
the form of on-record voting of the board.  A response received was
that it would possibly prevent board members from voting in the
interests of the Internet, should that interest happen to conflict
with an individual's constituency or employer.  Again, this is perhaps
a valid concern, but not something the board should decide for us.
This is also not in keeping with the mandates of the White Paper, nor
even the most simplistic requirements for avoiding conflicts of
interest.  Such conflicts of interest should not be protected from
open public disclosure.
Bottom line:
We think ICANN hs a long way to go before meeting the criteria
outlined in your letter to Dr. Schorr on October 20, 2020 and we urge
you to not give them acceptance at this time.
Sincerely Yours, 
  The Negotiating Team of Open Root Server Confederation, Inc.
  Einar Stefferud, ORSC Chairman of the Board, California USA
  Dan Steinberg, ORSC Counsel, Quebec Canada
  Mikki Barry, DNRC, Virginia USA
  Jay Fenello, President, Iperdome, Georgia, USA
  Brian K. Reid, Society of Archbishop Justus, California USA 
  Richard J. Sexton, VRx Inc., Ontario Canada 
  Tony Rutkowski, NGI Associates, Virginia USA