[CWG-Stewardship] Question for Sidley

[Milton L Mueller]

Chuck:
I don’t know about the legal issues, but a “legal separation if needed later” model strikes me as a very poorly thought- out idea.

There were three key advantages the S-A discussion draft identified for legal separation. One was that creating a legally distinct affiliate now would make it future separation more stable and easy. In other words, if you don’t lay the groundwork for separability now, it won’t ever happen, or if we try to make it happen t will be very ugly and destabilizing. The other was that there would be an explicit contract between ICANN and IANA. The third was that there would be a distinct governance body devoted to IANA performance and oversight issues.

There was also a fourth advantage – an important one that you seem to have overlooked – raised by Mr. Boucher, which is that the legal separation dramatically increases chances of getting Congressional approval.

The idea of “legal separation if needed later” sacrifices all four of those virtues for the present, with a promise that, somehow, we will move to it if needed later. But this doesn’t make sense to me. First, without Congressional approval there may be no transition at all. Second, assuming we follow this model who would decide if it is “needed”? Your proposal provides no mechanism for actually doing it, so in effect the promise of “if needed” is a hollow one. Third If it might be needed in the future, why not do it now?

Further, the purely internal model that you would propose for the short term would require major by-law changes to be implemented for accountability purposes (people keep sweeping that fact under the rug). These by-law changes have to be carefully coordinated with the CCWG in a complex process. So apparently you want ICANN and its community to make a lot of complex and interdependent by-law changes and then discard them later or change the rules again?

No, this idea doesn’t pass the laugh test. We have to choose one or the other.

From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Gomes, Chuck
Sent: Wednesday, April 8, 2015 9:10 PM
To: cwg-stewardship at icann.org
Subject: [CWG-Stewardship] Question for Sidley

Are there any legal issues that the CWG should be concerned with if it considered proposing a functional separation model for the initial transition and a legal separation model if needed at a later date?

Chuck
“This message (including any attachments) is intended only for the use of the individual or entity to which it is addressed, and may contain information that is non-public, proprietary, privileged, confidential and exempt from disclosure under applicable law or may be constituted as attorney work product. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this message in error, notify sender immediately and delete this message immediately.”
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-stewardship/attachments/20150409/23bdabfe/attachment.html>