[CWG-Stewardship] Question re fiduciary duties and separation

[Greg Shatan]

Jordan,

I don't think there is any reason that separability would be rendered
inoperable by the CWG's proposal.  Quite the opposite.  We have been very
focused on separability, and it is one of the key principles that underpin
our entire proposal.  We have developed a community-driven separation
process for that purpose, culminating in the SCWG.

I think the issue of the ICANN Board's duties, including fiduciary duty, is
more nuanced than you imply (or than Jones Day may sometimes appear to
imply), and it includes duties relating to the public interest, among other
things.  We have received advice from Sidley Austin on this broader issue.
I don't have it at my fingertips, but it should be available on the CWG
wiki pages, where there should be a page with documents, including
documents from Sidley.

Given the Board's duties, there did not seem to be any question that the
Board could agree to relinquish the IANA operator duties relating to
names.  I expect this would be further clarified in the Bylaws relating to
the SCWG and to separation generally.

Greg



On Mon, Aug 31, 2015 at 6:31 PM, Jordan Carter <jordan at internetnz.net.nz>
wrote:

> Andrew, all:
>
> On 1 September 2015 at 09:33, Andrew Sullivan <ajs at anvilwalrusden.com>
> wrote:
>
>> On Tue, Sep 01, 2015 at 07:08:19AM +1200, Jordan Carter wrote:
>> > Is the ICANN board allowed to agree to a separation of the IANA
>> functions
>> > operator, given its fiduciary duties to the corporation?
>>
>> It'd be hard not to, given that it has had that agreement with the
>> IETF for many years.  If the answer is, "No," we're going to have a
>> very rocky future ahead.
>>
>>
> On the face of it I don't think there is an issue with numbers and
> protocols. Those communities have agreements with ICANN and can I suppose
> appoint alternative operators regardless of what ICANN thinks. That is how
> the principle of separability is upheld in their proposals.
>
> The question is still interesting as it might guide ICANN's response to a
> decision by such a community to move the operator - e.g. would it feel
> obliged to oppose such a change.
>
> The complexity, as usual, arises with names :-(
>
> I would be grateful for knowledge from CWG participants on the question,
> in respect of the names process, but also whether it was considered for the
> others.
>
> I keep coming back to the status quo. At the moment, the USG can reassign
> the functions. We need to be careful that, given there is a principle of
> separability, it isn't rendered inoperable by the CWG's proposal through
> this matter.
>
> best
> Jordan
>
>
>
> --
> Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> +64-495-2118 (office) | +64-21-442-649 (mob)
> Email: jordan at internetnz.net.nz
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>
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