[CWG-Stewardship] Remember to send questions and comments to legal advice from Sidley Austin

[Andrew Sullivan]

Hi,

On Fri, Apr 10, 2015 at 05:07:07PM +0100, Paul M Kane - CWG wrote:

> We are designing a process for transitioning the Stewardship of IANA
> from NTIA - therefore we need to consider the Stewardship role. To
> suggest this is not to be considered now is absurd.
[…]
> (limited and defined scope) affiliated company, within the ICANN Community,
> responsible for Stewardship.

I don't understand how the latter follows from the former.  It's true
that in the absence of the NTIA's stewardship, that stewardship moved
somewhere else.  It does not follow from that that one needs a
"company…responsible for Stewardship."  It only follows that the
stewardship function, to the extent it functions, needs to happen
somewhere.

The arguments for legal separation amount to arguments that
stewardship is going to be easiest to ensure when the stewards and the
thing to be stewarded are legally separated from one another.  The
contractual terms between the stewards and the stewarded prevent the
latter from doing whatever it likes, it's true; but they equally
protect the latter from untoward interference by the former, when the
former might try to overreach ("Quis custodiet ipsos custodes?").

In other words, stewardship does not lie in a single company, but in
the relationship between two functions; and ultimately, in the wider
community observing all of these interactions.  I don't think anyone
is suggesting we not consider stewardship.  But I do think it absurd
to think that the right thing to do is try to re-create an
organization to fill the shoes currently occupied by NTIA.  If we're
going to reproduce the dissatisfying structure we have, why would we
change it at all?

Best regards,

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com