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

[Greg Shatan]

Rather than referring this issue to the lawyers, I think the CWG needs to
consider whether there is enough traction to (re)consider this model, which
is essentially one that was set aside in Istanbul in favor of an internal
model with legal or structural separation.  Under the internal model(s),
the oversight and accountability structures are internal to ICANN and its
community.  At some level, I'm agnostic on the approach, so this is not
about what I prefer.  Rather this is about the course that the CWG is on,
and whether there is sufficient interest in the CWG to explore a
significant course deviation.

That said, it may be that the advice we get is that entities such as the
CSC should be legally cognizable, in addition to having the IANA Function
in a legally cognizable affiliate, as opposed to a committee created by the
Bylaws or chartered by SO/ACs.  That is more of a detail (though an
important one).

Greg

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On Fri, Apr 10, 2015 at 12:17 PM, Andrew Sullivan <ajs at anvilwalrusden.com>
wrote:

> 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
> _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
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