[CWG-Stewardship] Some questions for Sidley-Austin

[Milton L Mueller]

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<http://internetgovernance.org/>

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