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

Sat Apr 11 17:13:12 UTC 2015

Hi

Paul said:

/I agree the external contract co does not work (based on Sidley's 
advise //given in Istanbul), but we need to have proper legal advise as 
how best to have a (limited and defined scope) affiliated company, 
within the ICANN Community, responsible for Stewardship./

I don't see this as going back to an external model or changing course.  
I see this as more of a variation on the affiliate model which is one of 
the options being explored.

Matthew

On 4/10/2015 11:09 PM, Gomes, Chuck wrote:
>
> 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
>
>
> *Gregory S. Shatan **ï****Abelman Frayne & Schwab*
>
> *Partner** | IP | Technology | Media | Internet*
>
> *666 Third Avenue | New York, NY 10017-5621*
>
> *Direct*212-885-9253 *| **Main*212-949-9022
>
> *Fax*212-949-9190 *|* *Cell *917-816-6428
>
> */gsshatan at lawabel.com/* <mailto:gsshatan at lawabel.com>
>
> *ICANN-related: **/gregshatanipc at gmail.com/* 
> <mailto:gregshatanipc at gmail.com>
>
> */www.lawabel.com/* <http://www.lawabel.com/>
>
> 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>
>
> _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org <mailto:CWG-Stewardship at icann.org>
> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
>
>
> _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-stewardship

-- 
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 (0)771 247 2987

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-stewardship/attachments/20150411/b952038f/attachment-0001.html>