[gnso-rds-pdp-wg] Asking for permisson versus saying what we need

[Andrew Sullivan]

Hi,

I have read the WSGR memo, and while I certainly appreciate it I
wonder whether we are going about this the right way.

In asking the lawyers for advice, we stated a bunch of things that are
already done and that we _could_ (continue to) do, and asked
hypothetical questions about whether they conformed.  This is a
plausible way to proceed, and I think it was not wrong (I myself
supported it).  But I read the answers as providing the multi-handed
(on the one hand … on the other hand … on the left foot …) answer
that, were I a lawyer, I would also provide.  For the only correct
answer is, "It depends."

So, as far as I can tell, this memo rules some things we _might_ want
to do clearly out of bounds, but that's about it.  What it does not do
is give us positive basis for action.

It strikes me that, when I go to a lawyer for commercial purposes, I
have a list of stuff I want to do.  I then ask for advice as to
whether that thing is legal, and how to make that thing legal if it is
slightly wrong.

I therefore hope that, as the next phase of our discussion, we can
stop pretending that the question, "Do we need this data?" is somehow
going to be answered by the legal consultation.  The answer from the
law is, "It depends," and what we need to do is decide what problems
we think the RDS ought to solve.  It _could_ be that the problems we
want it to solve can't be solved legally, but I do not see evidence of
that in this memo.  Once we have decided what we want to do, then we
should come up with a way we think we can do it, and try to figure out
(with legal advice) whether it's ok.  I think that's what the work
plan envisions, so I look forward to moving quickly in that direction.

Best regards,

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com