Responses to questions from Jones Day

Feb. 8, 2015

I can't for the life of me understand why this group is prepared to accept
ICANN paying for external legal advice on a topic of the highest possible
interest to ICANN.

Considering the importance of this topic, I am pretty sure that the various
internet organizations who depend so heavily on ICANN would be willing to
pay into a fund to cover independent legal advice.

I also think it would be advisable for whoever is contracted to provide
this advice to be obligated to report any and all approaches and
conversations with third parties in order to limit the opportunity for
behind-the-scenes influencing.

Kieren

On Sun, Feb 8, 2015 at 1:14 AM, Phil Corwin <psc@vlaw-dc.com> wrote:

> +1. ICANN has tripled its staff in 2.5 years. Surely it can provide the
> resources that this CCWG needs to retain independent legal advice.  Until
> it does this CCWG should be in a holding pattern and if that delays the
> transition so be it.
>
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
> 1155 F Street, NW
> Suite 1050
> Washington, DC 20004
> 202-559-8597/Direct
> 202-559-8750/Fax
> 202-255-6172/Cell
>
> Twitter: @VLawDC
>
> "Luck is the residue of design" -- Branch Rickey
>
> Sent from my iPad
>
> > On Feb 8, 2015, at 5:08 PM, Matthew Shears <mshears@cdt.org> wrote:
> >
> >
> > Completely agree:
> >
> > I'd really like to see ICANN demonstrate it is as concerned with helping
> the CCWG secure our independent legal resources "in the most efficient and
> cost-effective manner" as it was in sharing its own views and positions.
> >
> >
> > Matthew
> >
> >
> >> On 2/8/2015 9:03 AM, Drazek, Keith wrote:
> >> Hi all,
> >>
> >> If everyone recognizes the Jones Day submission as input/advocacy from
> an interested party and not legal advice to the CCWG, and that it carries
> no greater weight than our yet-to-be-received independent advice, I have no
> idea what with ICANN putting its cards on the table.
> >> I'm
> >> Despite the appearance of an attempt to influence the discussion
> through first-mover advantage, this could help us identify early conflicts
> of opinion and identify where we need to focus our energies.
> >>
> >> That said, I'd really like to see ICANN demonstrate it is as concerned
> with helping the CCWG secure our independent legal resources "in the most
> efficient and cost-effective manner" as it was in sharing its own views and
> positions.
> >> I'm at a
> >> It appears there was more urgency for the latter.
> >> I'm
> >> Regards,
> >> Keith
> >>
> >> Sent from my iPhone
> >>
> >>> On Feb 8, 2015, at 4:25 PM, Edward Morris <egmorris1@toast.net> wrote:
> >>>
> >>> One of the reasons many of us opposed inclusion of ICANN staff members
> as participants in the accountability and transition working groups, is
> that disagreement with staff positions  could prove problematic for those
> opposing ICANN positions. As a sitting member of the GNSO Council, elected
> by my community, I would suggest Samantha that you, as an ICANN staff
> member, are not tasked with determining what is and is not an acceptable
> opinion or post on this list.
> >>>
> >>> For the record, despite your assertion, I have not seen anyone declare
> the Jones Day opinion "incompetent". I certainly have not. I will, however,
> repeat my claim: it is a one sided document that uses legal opinion to
> support the known preferences of a interested party (ICANN). It is not a
> neutral opinion that we as community members can rely upon in making our
> decisions. I look forward to receiving one so I can discharge my
> responsibility in helping your employer, Samantha, meet it's obligations to
> the both community and to the N.T.I.A.
> >>>
> >>> Edward Morris
> >>>
> >>> Sent from my iPad
> >>>
> >>>> On Feb 8, 2015, at 7:40 AM, Samantha Eisner <
> Samantha.Eisner@icann.org> wrote:
> >>>>
> >>>> Kevin, a skilled attorney in California corporate structures as well
> as
> >>>> governance issues, provided these responses to the CCWG questions as a
> >>>> mode of giving input into the process.  Kevin has just arrived here in
> >>>> Singapore and will be available to discuss these answers; if
> modifications
> >>>> or clarifications are needed, they can be provided.  These responses,
> many
> >>>> of which provide a transparent view on advice or positions that ICANN
> has
> >>>> taken in the past on these issues, are being provided to help narrow
> and
> >>>> clarify the issues for which external advice may be sought.  From the
> >>>> ICANN side, we are very interested in making sure that the CCWG gets
> the
> >>>> input that it needs and in the most efficient and cost-effective
> manner;
> >>>> ICANN’s transparency on this issue will allow for other counsel to be
> able
> >>>> to provide advice in a  quicker, more timely manner.
> >>>>
> >>>> As we go down the legal advice path, each of us are likely to see
> answers
> >>>> that we may not agree with; while we do not have to accept positions
> with
> >>>> which we take issue, we do need to afford the appropriate respect to
> those
> >>>> providing responses.  Suggestions of “incompetence” are not
> acceptable.
> >>>>
> >>>>
> >>>>> On 2/8/15, 2:06 PM, "Edward Morris" <egmorris1@toast.net> wrote:
> >>>>>
> >>>>> I agree Becky. This work product is pure advocacy that ignores
> >>>>> substantial portions of the statutes it claims to explain. It's
> actually
> >>>>> quite remarkable in that way.
> >>>>>
> >>>>> I only hope we are able to retain competent independent legal
> consultant
> >>>>> to guide us in this work. I would classify the Jones Day document as
> no
> >>>>> more than the representation of a  policy position of an interested
> party
> >>>>> drafted by an attorney , not as anything I'd consider valid legal
> advice.
> >>>>>
> >>>>> Sent from my iPad
> >>>>>
> >>>>>> On Feb 8, 2015, at 5:03 AM, Burr, Becky <Becky.Burr@neustar.biz>
> wrote:
> >>>>>>
> >>>>>> The questions and answers are interesting as advocacy but cannot be
> >>>>>> considered legal advice for our work
> >>>>>>
> >>>>>> Sent from my iPad
> >>>>>>
> >>>>>>> On Feb 8, 2015, at 12:19 PM, León Felipe Sánchez Ambía
> >>>>>>> <leonfelipe@sanchez.mx> wrote:
> >>>>>>>
> >>>>>>> Dear all,
> >>>>>>>
> >>>>>>> Answering your questions:
> >>>>>>>
> >>>>>>> Keith.- The questions were presented by the Co-Chairs at our
> Frankfut
> >>>>>>> meeting as a high-level first approach to what we should be
> focusing on
> >>>>>>> achieving. They were also discussed at the CCWG call of January
> 27.  We
> >>>>>>> then asked Staff to pass the questions through ICANN legal so they
> >>>>>>> referred this questions to Jones Day. The document are the
> responses
> >>>>>>> prepared by Kevin Espinola of Jones Day.  The goal was to get a
> very
> >>>>>>> rapid
> >>>>>>> response on some basic questions the group wanted answers on.
> >>>>>>>
> >>>>>>> Jordan.- I believe Adam has clarified where the questions came
> from and
> >>>>>>> how they got into Jones Day for response which is in line with
> what I
> >>>>>>> have
> >>>>>>> replied to Keith.
> >>>>>>>
> >>>>>>> Phil.- Nobody said this was the advice we are taking. Please see
> this
> >>>>>>> document as one more input document tat will feed our work, just
> as the
> >>>>>>> CWG legal document has fed it. This is NOT intended to be taken as
> the
> >>>>>>> legal advice we¹re looking for although in the end it might (or
> might
> >>>>>>> not)
> >>>>>>> be compatible with what we need.
> >>>>>>>
> >>>>>>> I hope this clarifies the doubts and concerns raised so far.
> >>>>>>>
> >>>>>>> Best regards,
> >>>>>>>
> >>>>>>>
> >>>>>>>
> >>>>>>> León
> >>>>>>>
> >>>>>>>> El 08/02/2015, a las 12:05, Dr Eberhard W Lisse <el@lisse.NA>
> >>>>>>>> escribió:
> >>>>>>>>
> >>>>>>>> Phil,
> >>>>>>>>
> >>>>>>>> opinions of dependent lawyers are as interesting as the ones of
> >>>>>>>> independent ones :-)-O
> >>>>>>>>
> >>>>>>>> el
> >>>>>>>>
> >>>>>>>>> On 2015-02-08 11:48 , Jordan Carter wrote:
> >>>>>>>>> Phil, yes - the CCWG agreed with that in Frankfurt. It was felt
> it
> >>>>>>>>> might
> >>>>>>>>> be helpful to understand the view of the company and its
> >>>>>>>>> representatives
> >>>>>>>>> as well as an independent view, if I recall correctly.
> >>>>>>>>> Jordan
> >>>>>>>>>
> >>>>>>>>> On 8 February 2015 at 11:36, Phil Corwin <psc@vlaw-dc.com
> >>>>>>>>> <mailto:psc@vlaw-dc.com>> wrote:
> >>>>>>>>>
> >>>>>>>>> Jones Day cannot be regarded as an objective and neutral source
> of
> >>>>>>>>> legal advice or opinions on anything related to ICANN. Indeed,
> any
> >>>>>>>>> statement made by Jones Day must be regarded as the views of
> ICANN,
> >>>>>>>>> its long-standing client.
> >>>>>>>>>
> >>>>>>>>> Sent from my BlackBerry 10 smartphone.
> >>>>>>>>>
> >>>>>>>>> Philip S. Corwin, Founding Principal
> >>>>>>>>> Virtualaw LLC
> >>>>>>>>> 1155 F Street, NW. Suite 1050
> >>>>>>>>> Washington, DC 20004
> >>>>>>>>> 202-559-8597/Direct
> >>>>>>>>> 202-559-8750/Fax
> >>>>>>>>> 202-255-6172/Cell
> >>>>>>>>> Twitter: @VLawDC
> >>>>>>>>>
> >>>>>>>>> "Luck is the residue of design" -- Branch Rickey
> >>>>>>>>> *From: *Drazek, Keith
> >>>>>>>>> *Sent: *Sunday, February 8, 2015 11:14 AM
> >>>>>>>>> *To: *León Felipe Sánchez Ambía
> >>>>>>>>> *Cc: *CCWG Accountability
> >>>>>>>>> *Subject: *Re: [CCWG-ACCT] Responses to questions from Jones Day
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> Leon,
> >>>>>>>>>
> >>>>>>>>> Do I understand you correctly that Jones Day developed both the
> >>>>>>>>> questions and the answers? Did the CCWG request this?
> >>>>>>>>>
> >>>>>>>>> Thanks,
> >>>>>>>>> Keith
> >>>>>>>>>
> >>>>>>>>> Sent from my iPhone
> >>>>>>>>>
> >>>>>>>>> On Feb 8, 2015, at 10:18 AM, León Felipe Sánchez Ambía
> >>>>>>>>> <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> wrote:
> >>>>>>>>>
> >>>>>>>>>> Dear all,
> >>>>>>>>>>
> >>>>>>>>>> Please find attached the responses from Jones Day for questions
> >>>>>>>>>> prepared by Kevin Espinola. I would like to ask you to please
> >>>>>>>>>> review the document so we can further discuss it in our session
> >>>>>>>>>> tomorrow.
> >>>>>>>>>>
> >>>>>>>>>> I would also like to remind the group that this is a first step
> >>>>>>>>>> which runs parallel to what the legal sub-team is doing in
> >>>>>>>>>> coordination with the CWG “legal client”. The aim is to have
> this
> >>>>>>>>>> responses reviewed by the legal sub-team as well as by the
> larger
> >>>>>>>>>> CCWG so we can determine how to better validate this responses
> >>>>>>>>>> with the external legal advisors when we engage with said
> external
> >>>>>>>>>> advice.
> >>>>>>>>>>
> >>>>>>>>>> I look forward to a fruitful session with all of you.
> >>>>>>>>>>
> >>>>>>>>>> Best regards,
> >>>>>>>>>>
> >>>>>>>>>>
> >>>>>>>>>>
> >>>>>>>>>> León
> >>>>>>>>>>
> >>>>>>>>>>
> >>>>>>>>>> <Accountability Questions for CCWG - from Jones Day.pdf>
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> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> --
> >>>>>>>>> Jordan Carter
> >>>>>>>>>
> >>>>>>>>> Chief Executive
> >>>>>>>>> *InternetNZ*
> >>>>>>>>>
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> >>>>>>>>> Skype: jordancarter
> >>>>>>>>>
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