[client com] Fwd: [CWG-Stewardship] Some questions for Sidley-Austin

[Greg Shatan]

I am forwarding these questions into the Client Committee for review and
consideration by same and Counsel; perhaps on our call tomorrow (Friday).

Greg


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---------- Forwarded message ----------
From: Milton L Mueller <mueller at syr.edu>
Date: Thu, Apr 9, 2015 at 7:27 PM
Subject: [CWG-Stewardship] Some questions for Sidley-Austin
To: "cwg-stewardship at icann.org" <cwg-stewardship at icann.org>


 These questions are based on a close reading of the discussion draft.

I will be in California at the ARIN meeting during the Monday and Tuesday
calls and am not sure whether I can attend any of them, so here are some
written questions.



p. 1

Are we mincing words when we call the second option “functional
separation?” Is there a clear and robust definition of “functional
separation?” How, exactly, is the “functional” separation contemplated by
the discussion draft different from what we now have (IANA as a department
of ICANN)? Would it be more accurate to continue to call this an “internal
to ICANN” option?



p. 6

You say the PRF group could recommend to "terminate or initiate" an RFP for
the IANA functions contract. I do not understand what is meant by
"terminating" an RFP - do you mean terminate the IANA contract?



You describe an escalation path for CSC that starts with PTI itself, goes
to CSC, then to the PTI board, and then the ICANN board. If the PTI board
was independent of ICANN, would it make sense to have the ICANN board as
the ultimate escalation point? Shouldn't the final step of this escalation
be the PRF and the possibility of a RFP to change providers?



Are any legal issues raised by combining the functions of the CSC and PRF
in order to streamline the proposal? e.g., by making the CSC automatically
part of the PRF or a fixed proportion of the PRF?



p. 7

In the internal option, you say the PRF would conduct periodic reviews of
the IANA functions "in the same manner" as in the legal separation variant.
But what would the boundaries of the review function be when IANA was part
of ICANN and lacked its own governance structure? Would PRF be reviewing
any and every part of ICANN that touched upon the IANA functions? E.g.,
since primary oversight of IANA would rest with the ICANN board, would the
PRF be empowered to investigate any and every board member, the CEO or the
board as a whole? Isn't it possible that such a review could stray into
dissatisfactions caused by policy disagreements rather than IANA
performance per se?



I still do not understand how the principle of separability would be
achieved with the so-called functional separation. Unless IANA is already
structurally and legally divested, the political resistance to and economic
disruptiveness of divestiture would essentially eliminate separation as a
viable option. Can S-A provide examples of organizations that have agreed
to surrendered critical functions to a competitor at the behest of their
stakeholders?



Milton L Mueller

Laura J. and L. Douglas Meredith Professor

Syracuse University School of Information Studies

http://faculty.ischool.syr.edu/mueller/

Internet Governance Project

http://internetgovernance.org



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