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

Fri Apr 10 22:09:29 UTC 2015

Milton,

I was not suggesting that we should seek legal advice on this; that would be changing course.  What I was trying to say is that we shouldn’t change course until such time that we get information that invalidates our current direction such as new legal advice as they continue to do what we asked them to do, i.e., further explore the two options currently on the table.

Chuck

From: Milton L Mueller [mailto:mueller at syr.edu]
Sent: Friday, April 10, 2015 6:04 PM
To: Gomes, Chuck; Greg Shatan
Cc: cwg-stewardship at icann.org
Subject: RE: [CWG-Stewardship] Remember to send questions and comments to legal advice from Sidley Austin

Chuck, et al

My view is that the legal separation model was intended to be a middle ground between the fully external options advocated now by Paul and an internal option that was clearly unacceptable to nearly half of the CWG. Thus, I would agree with you that we should not change course now until we discover whether that middle ground can be acceptable to most parties. It might be helpful in this regard for Paul to explain why he prefers an external entity to legal separation with an independent PTI board.

But this is not an issue that can be resolved through “legal advice,” as it is not a legal issue. So in that respect, you are not responding appropriately to Greg’s message, as he said that this was not an issue that could be referred to the lawyers. It has to do with whether Paul Kane’s idea has sufficient support (“traction”) to put some kind of an external entity back on the table.

The legal advisors are here only to tell us what is legally possible (and impossible). They are not here to tell us what is desirable.

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: Friday, April 10, 2015 2:45 PM
To: Greg Shatan; Andrew Sullivan
Cc: cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] Remember to send questions and comments to legal advice from Sidley Austin

Unless we get legal advice that justifies a possible course correction, I don’t think we should changes courses at this time.  Let’s at least pursue the current course long enough to make a better judgment about needing to change directions.

Chuck

From: cwg-stewardship-bounces at icann.org<mailto:cwg-stewardship-bounces at icann.org> [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Friday, April 10, 2015 2:26 PM
To: Andrew Sullivan
Cc: cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] Remember to send questions and comments to legal advice from Sidley Austin

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<mailto: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<mailto:ajs at anvilwalrusden.com>
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