[CWG-Stewardship] Question for Sidley

[Gomes, Chuck]

Milton,

Please see my responses below.

Chuck

From: Milton L Mueller [mailto:mueller at syr.edu]
Sent: Thursday, April 09, 2015 2:48 PM
To: Gomes, Chuck; cwg-stewardship at icann.org
Subject: RE: 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.
[Chuck Gomes] I haven’t overlooked any of the possible advantages of the legal separation model but instead am also considering possible disadvantages of it in addition to the advantages.  One advantage is that it would involve a simpler transition with lest risk of destabilizing current services.  Another is that would likely be less complex.  A third is that it could probably be implemented in a more timely manner, assuming of course as you point out below that the internal accountability mechanisms can be implemented in a timely manner including bylaws changes, an assumption I know is a big one.

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?
[Chuck Gomes] It is not impossible that the functional separation model could work out well if the accountability mechanisms are well designed and implemented.  If it did, there would be little if any sacrifice.  Of course we don’t know at this point in time.  That is one reason why it might make sense to give it a shot.  And that could be done in multiple ways; here are a couple ways: 1) implement it and then switch to the legal separation approach if needed; 2) implement it with the clear understanding that we would switch to the legal separation approach in a specified time period (e.g., 12-18 months).  The latter approach would allow plenty of time to do it right while still facilitating a quicker transition.

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.
[Chuck Gomes] I am not laughing but I am trying to think of alternative ways of achieving what I think we all want in the best way possible considering all variables.

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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