[CWG-Stewardship] Question for Sidley

Thu Apr 9 21:02:22 UTC 2015

Hi Seun,
But that is not what I remember to be the conclusion of the discussion in Istanbul. The idea was that the oversight role would be within ICANN and only the IANA operations would be separated. Otherwise I fail to see what the role of the contract between ICANN and the PTI would be and why we botter about a stakeholder community/member group that can overrule the ICANN board with regard to decisions on PRF.
Maarten

From: Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>>
Date: Thursday 9 April 2015 22:50
To: SIDN SIDN <maarten.simon at sidn.nl<mailto:maarten.simon at sidn.nl>>
Cc: Chuck Gomes <cgomes at verisign.com<mailto:cgomes at verisign.com>>, "cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>" <cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>>, Milton Mueller <mueller at syr.edu<mailto:mueller at syr.edu>>
Subject: Re: [CWG-Stewardship] Question for Sidley

Maarten I think that is what the subsidiary  PTI(legal separation) intends to achieve as indicated on S-A Statement. In summary, we are looking at post-transition scenario where the entity currently being over-sighted upon becomes the oversight on a new IANA operator/IANA manager called the PTI.

Regards
sent from Google nexus 4
kindly excuse brevity and typos.

On 9 Apr 2015 21:33, "Maarten Simon" <maarten.simon at sidn.nl<mailto:maarten.simon at sidn.nl>> wrote:
Hi Milton,

You mention ‘ a distinct governance body devoted to IANA performance and oversight issues’. Am I correct that your underlying assumption here is that the board of PTI will be a multistakeholder body and that they will oversee (and operate) the IANA function ?

Best,

Maarten

From: Milton Mueller <mueller at syr.edu<mailto:mueller at syr.edu>>
Date: Thursday 9 April 2015 20:48
To: Chuck Gomes <cgomes at verisign.com<mailto:cgomes at verisign.com>>, "cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>" <cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>>
Subject: Re: [CWG-Stewardship] Question for Sidley

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> [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<mailto: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
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