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

Sat Apr 11 17:17:21 UTC 2015

Matthew (or Paul),

What do you think goes in the affiliate in this instance?

Greg

On Sat, Apr 11, 2015 at 1:13 PM, Matthew Shears <mshears at cdt.org> wrote:

>  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 <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
> <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
> *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
> <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
> *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* <gsshatan at lawabel.com>
>
> *ICANN-related: **gregshatanipc at gmail.com* <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>
> 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
>
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>
> --
> Matthew Shears
> Global Internet Policy and Human Rights
> Center for Democracy & Technology (CDT)+ 44 (0)771 247 2987
>
>
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