March 2015 - CWG-Stewardship

How the Designs Teams relate to the proposal
by Olivier MJ Crepin-Leblond March 10, 2015

March 10, 2015

Hello all, I heard Chuck's question on the call regarding how the design teams relate to the final proposal and Jonathan's answer - but unfortunately I could not talk & had no Internet. I think it's important to find detailed placeholder locations in the proposal (including chapter/section numbers) for the text that each design team will draft so that we can, when the time comes, just paste it there. It will also help in drafting the text so that it flows well with the other sections. Kindest regards, Olivier

1 0

Re: [CWG-Stewardship] Principles: revised draft 9 March
by John Poole March 10, 2015

March 10, 2015

Martin: I know this has been raised before but I am still unsure of your terminology--please define "IANA Functions Operator" which appears multiple times in various contexts in the draft of Principles. Are you referring only to the IANA department within ICANN, or are you referring to ICANN? ICANN is referred to generally as the "IANA Functions Operator" in NTIA and ICANN and other documents <https://www.google.com/search?q=IANA+functions+operator>. The draft Principles seem to use the term in places as referring to ICANN and other places as referring only to the IANA department within ICANN--*e.g.*, in 5 iii: "... policy processes should be independent of the IANA Functions Operator ..."* i.e.,* policy processes should be independent of ICANN? Then who is making policy? Could you please clarify? Best regards, John Poole On Mon, Mar 9, 2015 at 12:34 PM, Martin Boyle <Martin.Boyle(a)nominet.org.uk> wrote: > Dear Colleagues, > > > > I attach a revised draft of the principles document based on our calls on > 3 & 5 March. I believe we have a text that is pretty much in its final > form, with only one outstanding issue. > > > > Looking at the remaining highlighted changes: > > > > 5.ii & iii: These are mainly editorial and have been discussed without > opposition on recent calls. > > > > 5.iv footnote: We had comments about the meaning of consensus in the > footnote. I do not think that defining consensus is in the remit of this > document, but is part of the considerations of any entity that we > establish. Hence I have added, “Conditions for consensus will need to be > agreed appropriate for the group” to make this clear. > > > > 5.vi: As I said when I flagged this paragraph as of concern, I am > inherently uneasy about a principle that is essentially optional and where > it might need to be re-written because of subsequent choices that we make. > Either it is a principle or it isn’t. I believe that we need to understand > the implications of what we are trying to say, so I am taking editor’s > right to propose a new formulation that should be independent of subsequent > decisions. > > > > 6.ii: Was agreed as not being a principle last week. > > > > 7.i: Editing agreed last week. > > > > 7.ii: We took this off-line. There has been some progress in discussions > with Paul and Elise. I have made a drafting proposal to both for wording > that tries to take into account the concerns they have expressed. However, > this paragraph needs to be held in abeyance until we have heard the views > of both. > > > > 8.ii: In discussion with Erick, we have identified a compromise that > moves away from saying anything about the policy authority and who it might > or might not be. The proposed wording (“In particular, the IANA functions > operator should not impose any additional requirements on the registry > unless they are directly and demonstrably linked to global security, > stability and resilience of the DNS.”) turns this around to prevent the > IANA functions operator making unilateral decisions that impact the ccTLD > except in (rare) cases of global security, stability and resilience. *Given > the delicate balance behind this text, I hope that others will find this > formulation acceptable* and I thank Erick for his support in finding this > compromise. > > > > 9.i: A minor point here that was discussed last week. The wording is not > necessary to the text, but does make it clearer that i. is about > separability now and iii. says we would need to include separability for > all future IANA functions operators. > > > > 10: A reasonable edit proposed by Mary last week: no objections have > been raised. > > > > Hence I would hold 5.ii-iv, 6.ii, 7.i, 9.i and 10 to be agreed text if > there are no objections. > > > > 5.iv: I suggest we use the new wording unless there is significant > opposition. > > > > 7.ii: This has to stay in abeyance subject to agreement by Elise (in > discussion with the GAC) and by Paul Kane. > > > > 8.ii: Again I suggest we use the proposed wording unless there is > significant opposition. > > > > I look forward to comments on this approach, and please do flag early any > difficulties you might have with any of the proposals. > > > > Best > > > > > > Martin > > > > > > > > > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship > >

4 7

Notes, Recordings, Transcript CWG IANA #22 19 FEB
by Brenda Brewer March 10, 2015

March 10, 2015

Dear all, The notes, recordings and transcripts for the CWG IANA Call #22 on 19 February will be available here: https://community.icann.org/pages/viewpage.action?pageId=52889142 Action Items: Action: members should send reminders to their communities (participants may do so as well). Note extended deadline to 18:00 UTC on Monday 23 February. Reference announcement: <https://www.icann.org/news/announcement-2015-02-06-en> https://www.icann.org/news/announcement-2015-02-06-en Action: Berry will make a full table of all the answers to questions after Monday Action: Staff to look at rotating timezones for the calls (at the very least accommodating members) Action: Bernie to do comprehensive review of documents and to use new terminology (Design Teams) Action: All to propose tightly specified DTs on CWG list and start to build those out with leads Action: Bernie to produce backbone Proposal document Action: Martin/Lise to finalize Principles document within next two weeks Notes 19/2: Chuck Gomes on audio only 1. Opening Remarks * 22nd meeting -- wow! * 2 proposals have been submitted to ICG * Need to make (and be seen to make) progress towards a proposal * Wednesday session at ICANN52 * Thursday session went into more substance * Overall we committed to a refreshed approach * Meetings will be focused on committees of the whole as well as task forces meetings * Measure your participation by joining two meetings per week if possible 2. Processing ICANN52 * Staff has pulled feedback from transcripts. Meant as reference point for the work moving forward. * Link to Google Doc is here: <https://docs.google.com/document/d/1Me5cYBNX5XfMha2Bl4JhMXiPbvEyo8IlSAaflDs…> https://docs.google.com/document/d/1Me5cYBNX5XfMha2Bl4JhMXiPbvEyo8IlSAaflDs… * Berry has taken the feedback doc one step further by focusing in on the Q&A session in an attempt to analyze feedback * Feedback will be accepted through the end of the week either via CWG member/participant or through staff (Grace). * Yes, written responses should be added * Yes, reminders should be sent out * Extended deadline to 18:00 UTC on Monday 23 February * Input should be representative of members' organizations where possible (clarification otherwise) * Made the questions available for broad input (including SO/ACs). Views are not required per se, but welcome. Action: members should send reminders to their communities (participants may do so as well). Note extended deadline to 18:00 UTC on Monday 23 February. Reference announcement: <https://www.icann.org/news/announcement-2015-02-06-en> https://www.icann.org/news/announcement-2015-02-06-en Action: Berry will make a full table of all the answers to questions after Monday 3. Work of Client Committee / Legal Advice * Another Client Committee call planned for tomorrow * 6 firms on shortlist but at least one may drop off due to conflict of interest * Will need to discuss how to manage relationships between CWG, CCWG and ICANN * Greg has been participating in the CCWG legal group so that there is coordination and possibly a joint decision on a firm * Conflict of interest rules are standards ethics rules. Examples include a law firm that represents a counterparty to an * ICANN suit. Most law firms have a specialist lawyer who determines conflict for the firm. * Will have advice by F2F, but perhaps not full-fledged report. 4. Work Methods * Objective is to make progress while waiting for legal advice * Task Forces should be small groups of qualified people (relevant expertise + time to commit) * Two options for task force "membership" * a)- allow non-CWG people to join but Task Forces should be lead by CWG participant/members (majority should be CWG) * b)- require joining as participant even though we recognize that they will not participate fully * Suggestion that non CWG submit SOIs for participation * Willing to have calls twice per week (24 respondents -- 20 in favor and 4 against) * 2 calls per week in addition to any Task Force work Action: Staff to look at rotating timezones for the calls (at the very least accommodating members) 5. Task Forces/ Design Teams * Guidelines presented by Bernard Turcotte * These need to be manageable, small groups, that don't absorb all resources into one group. * Use the word Design Team (IETF style) moving forward * Any given DT should be linked to the Proposal so that the relevance to the work is clear * Start with clean slate for proposed DTs * The ability to separate (worst case scenario) is not the sole subject of this proposal Action: Bernie to do comprehensive review of documents and to use new terminology (Design Teams) Action: All to propose tightly specified DTs on CWG list and start to build those out with leads 6. Future Work * Meeting schedule was addressed earlier in the call. * Timeline will be adjusted as we settle into DT work (no more RFP subgroup bars) * F2F dates were arranged around project plan -- 26-27 March 7. CCWG-Accountability * Chairs have coordination call on Friday 8. Review of Action Items Action: members should send reminders to their communities (participants may do so as well). Note extended deadline to 18:00 UTC on Monday 23 February. Reference announcement: <https://www.icann.org/news/announcement-2015-02-06-en> https://www.icann.org/news/announcement-2015-02-06-en Action: Berry will make a full table of all the answers to questions after Monday Action: Staff to look at rotating timezones for the calls (at the very least accommodating members) Action: Bernie to do comprehensive review of documents and to use new terminology (Design Teams) Action: All to propose tightly specified DTs on CWG list and start to build those out with leads Action: Bernie to produce backbone Proposal document Action: Martin/Lise to finalize Principles document within next two weeks 9. AOB * F2F location has not yet been finalized * Avri raises "integrated model" and notes that comments are still open

5 7

Re: [CWG-Stewardship] Sidley Austin LLP
by John Poole March 10, 2015

March 10, 2015

Greg, Thanks for the reply and clarification--sorry my "gut reaction" yesterday offended you (or Jonathan :-)--like you, I am dealing with "health issues" (stroke in my case). I know there are no perfect processes. The one thing CWG now has going for it is Sidley Austin--a very fine firm indeed. As you know I had suggested Latham & Watkins in January, but after reading the submittal of Sidley Austin, I agree that they are a better fit for CWG. You, together with the rest of the Client Committee, and with the assistance of Sidley Austin, will hopefully now be able to lead CWG to a consensus proposal. Full speed ahead! Best regards, John Poole On Tue, Mar 10, 2015 at 10:22 AM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: > John, > > This exact set-up turned out not to be workable since the CWG is not a > party (nor is it a part of a party like a board committee). Nonetheless, I > believe that the substance of this email is carried out in the current > set-up. > > Greg > > On Mon, Mar 9, 2015 at 11:27 PM, John Poole <jp1(a)expri.com> wrote: > >> Jonathan, Greg, et al: >> >> Note that my reaction to today's disclosure that "ICANN is the client" >> was based, in part, on Greg Shatan's email to Kieren McCarthy in February: >> >> >> >> >> >> >> >> >> >> >> >> *Kieren,I don't think it is foolish at all to have ICANN pay for the >> independentadvice. It is not uncommon for one party to pay the bill and >> for anotherparty to be the client. It's not even uncommon to have a board >> committeeof a corporation hire independent counsel where the committee's >> interestsare divergent from the corporation (e.g., when dealing with an >> internalinvestigation) and have the corporation pay. These are situations >> that lawfirms are comfortable handling. Basically, the question is "who is >> theclient?" and the client would be the Working Group(s), not ICANN. The >> lawfirm's ethical "duty of loyalty" is to the client** . . . * >> >> [from Greg Shatan's email to Kieren McCarthy dated February 17, 2015 >> <http://mm.icann.org/pipermail/accountability-cross-community/2015-February/…> >> (emphasis added)] >> >> The above was my understanding, until today, of the terms under which >> independent legal counsel would be retained. There are no "pitchforks" >> intended here--at least not from me. >> >> Best regards, >> John Poole >> >>

1 0

Re: [CWG-Stewardship] Sidley Austin LLP
by John Poole March 10, 2015

March 10, 2015

Jonathan, Greg, et al: Note that my reaction to today's disclosure that "ICANN is the client" was based, in part, on Greg Shatan's email to Kieren McCarthy in February: *Kieren,I don't think it is foolish at all to have ICANN pay for the independentadvice. It is not uncommon for one party to pay the bill and for anotherparty to be the client. It's not even uncommon to have a board committeeof a corporation hire independent counsel where the committee's interestsare divergent from the corporation (e.g., when dealing with an internalinvestigation) and have the corporation pay. These are situations that lawfirms are comfortable handling. Basically, the question is "who is theclient?" and the client would be the Working Group(s), not ICANN. The lawfirm's ethical "duty of loyalty" is to the client** . . . * [from Greg Shatan's email to Kieren McCarthy dated February 17, 2015 <http://mm.icann.org/pipermail/accountability-cross-community/2015-February/…> (emphasis added)] The above was my understanding, until today, of the terms under which independent legal counsel would be retained. There are no "pitchforks" intended here--at least not from me. Best regards, John Poole On Mon, Mar 9, 2015 at 7:38 PM, John Poole <jp1(a)expri.com> wrote: > Greg: > My email was addressed to Jonathan, co-chair, not you. I made no specific > comments about you and I will disregard the ad hominem attacks you just > made on me. I am well aware of your contributions and work on behalf of > CWG-Stewardship. Nonetheless, I stand by my previous email. After you calm > down, however, I would also appreciate your responses to questions raised > in my previous email and also raised by your angry diatribe--when did you > first become aware that ICANN would be the client? Why did you not disclose > that to CWG-Stewardship until now? You say I am wrong--do you acknowledge > that Austin Sidley does NOT owe CWG-Stewardship the duties it would to a > client under the California Code of Professional Responsibility? On what > basis under California law do you maintain that CWG-Stewardship cannot be > the client? This is the first time I have heard you issue that opinion--why > did you not inform CWG-Stewardship of your opinion on this earlier? You say > "These very issues were raised and discussed" --where? when? Why wasn't > CWG-Stewardship informed before now? Did you really think it was of no > importance to disclose to CWG-Stewardship that ICANN would be the client? I > find that hard to believe. I never said Austin Sidley is not a fine > firm--on the contrary, I have already said they are eminently > well-qualified. But if Austin Sidley is rendering advice to a non-client, > instead of a client, I believe that raises issues, and ramifications, that > needed to be fully, and timely, disclosed to CWG-Stewardship. -- John Poole > > On Mon, Mar 9, 2015 at 6:30 PM, Greg Shatan <gregshatanipc(a)gmail.com> > wrote: > >> John, >> >> The CWG is not a legal entity, and therefore cannot engage ICANN for >> legal services (or for that matter enter into any contract with anybody for >> anything). You've read the letter -- it says Sidley is >> >> "to take direction exclusively from and provide advice and consultation >> exclusively to the Cross-Community Working Group on the IANA Stewardship >> Transition Proposal on Naming Related Functions (“CWG”), primarily through >> the CWG’s Client Committee (the “Client Committee”)." >> >> Furthermore, the letter states: >> >> "For the avoidance of doubt, ICANN will have no rights or input as a >> client to direct or affect the advice and consultation with the CWG." >> >> Let me make plain to everyone -- John is wrong. I am also fully aware of >> the ethical rules that apply in this instance. These very issues were >> raised and discussed and I am utterly confident that we will get the >> independent advice we sought. Sidley Austin is fully aware of the emphasis >> on "independent" legal advice and I am also confident they would not have >> taken this representation if they thought that they could not deliver on >> that. >> >> Furthermore I find these accusations incorrect, baseless and bordering on >> scurrilous and troll-like behavior. >> >> Let me make another thing plain. I am a volunteer. Nobody is paying me >> to do any of this. I can easily choose to devote my time to other things. >> I will devote my time to the IANA transition. I will not devote my time to >> having my character and professional integrity impugned. >> >> I worked damned hard and in utter good faith to get this CWG first-rate >> legal advice, and so did the rest of the client committee. It's depressing >> and infuriating to have to cope with this in response. I guess no good >> deed goes unpunished. But I am not a glutton for punishment. >> >> Greg >> >> >> >> On Mon, Mar 9, 2015 at 6:55 PM, John Poole <jp1(a)expri.com> wrote: >> >>> Jonathan: >>> I find this very troubling. ICANN is the client. Specifically, >>> CWG-Stewardship is NOT the client, so what good is Sidley Austin's advice? >>> Sidley Austin owes CWG-Stewardship none of the duties required of attorneys >>> to clients under the California Code of Professional Responsibility. This >>> is not what I understood CWG-Stewardship was getting, and I feel >>> CWG-Stewardship has been intentionally misled. For all intents and >>> purposes, ICANN could have made the same arrangements with Jones Day as >>> they did with Sidley Austin, and saved us the time and trouble. Has anyone >>> on the Client Committee reviewed independently the California Code of >>> Professional Conduct and sought the opinion of a qualified non-interested >>> California Attorney before agreeing to this? There are serious >>> ramifications as to who is the named "client"--including the duty of >>> loyalty--of which ICANN legal staff and Sidley Austin are fully aware. When >>> did the Client Committee agree that the client for our "independent legal >>> counsel" would be ICANN? Why was that not disclosed until now to all >>> members and participants of CWG-Stewardship? Jonathan, is this what you >>> mean by "good faith?" Let me make this plain for everyone--what the Client >>> Committee has obtained is "ICANN outside Legal Counsel" for our use, but >>> NOT Independent Legal Counsel--"Independent" means "independent of ICANN." >>> Now I understand why ICANN legal staff and Jones Day have been intimately >>> involved in the Client Committee process while members and participants of >>> CWG-Stewardship were intentionally kept in the dark. This is not "good >>> faith"--this reeks of "bad faith." -- John Poole >>> >>> On Mon, Mar 9, 2015 at 4:16 PM, Jonathan Robinson < >>> jonathan.robinson(a)ipracon.com> wrote: >>> >>>> All, >>>> >>>> >>>> >>>> You may find the attached a more easily digestible summary of key terms. >>>> >>>> >>>> >>>> Jonathan >>>> >>>> >>>> >>>> *From:* Jonathan Robinson [mailto:jrobinson@afilias.info] >>>> *Sent:* 09 March 2015 21:06 >>>> *To:* cwg-stewardship(a)icann.org >>>> *Subject:* RE: Sidley Austin LLP >>>> >>>> >>>> >>>> All, >>>> >>>> >>>> >>>> Please see attached for the executed engagement letter with Sidley >>>> Austin. >>>> >>>> >>>> >>>> Jonathan >>>> >>>> >>>> >>>> *From:* Jonathan Robinson [mailto:jrobinson@afilias.info >>>> <jrobinson(a)afilias.info>] >>>> *Sent:* 08 March 2015 21:46 >>>> *To:* cwg-stewardship(a)icann.org >>>> *Subject:* Sidley Austin LLP >>>> >>>> >>>> >>>> Dear All, >>>> >>>> >>>> >>>> As of Friday 6 March, the CWG-Stewardship has engaged Sidley Austin LLP >>>> to advise and consult on the CWG’s development of a transition proposal. >>>> >>>> >>>> >>>> In the past two weeks, the Client Committee shortlisted three firms, >>>> interviewed each of them, and retained one. We chose to retain Sidley >>>> primarily because they envisaged the engagement as consultation rather than >>>> pure advice. In addition, Sidley presented a strong governance focus as >>>> well as specific experience with the U.S. political environment (including >>>> a former Congressman and a former Department of Commerce appointee). >>>> >>>> >>>> >>>> Sidley is aware of the CWG’s tight timeframe and accepts the >>>> requirement for highly transparent work methods. Also, the client >>>> relationship has been clearly defined and emphasized in the retention >>>> letter in that *ICANN has instructed Sidley to take direction >>>> exclusively from and provide advice and consultation exclusively to the >>>> CWG, primarily through the CWG’s Client Committee*. >>>> >>>> >>>> >>>> Sidley has no previous client relationship with ICANN. No conflicts >>>> were identified, however please note that Greg Shatan and Holly Gregory >>>> from Sidley worked at the same firm over a decade ago. >>>> >>>> >>>> >>>> The Client Committee will meet with Sidley Austin on Monday. This call >>>> will be recorded and transcribed and we will then provide an update to the >>>> CWG on Tuesday’s call, where we also plan to introduce the Sidley team to >>>> the CWG. >>>> >>>> >>>> >>>> Best wishes, >>>> >>>> >>>> >>>> >>>> >>>> >>>> Jonathan & Lise >>>> >>>> >>>> >>>> _______________________________________________ >>>> CWG-Stewardship mailing list >>>> CWG-Stewardship(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/cwg-stewardship >>>> >>>> >>> >>> _______________________________________________ >>> CWG-Stewardship mailing list >>> CWG-Stewardship(a)icann.org >>> https://mm.icann.org/mailman/listinfo/cwg-stewardship >>> >>> >> >

2 1

DT-A : Revised Scope / Template
by Jonathan Robinson March 10, 2015

March 10, 2015

Paul, I understand that there was discussion on refining the scope of DT-A. The attached attempts to reflect that discussion. Please have a look ASAP and indicate whether or not this is consistent with your understanding and the group's current working. Many thanks, Jonathan

2 1

C.7.3. Plan for Transition to Successor Contractor
by Grace Abuhamad March 10, 2015

March 10, 2015

Dear all, Following up on a request made earlier in the CWG-Stewardship's work, the Transition to Successor plan called for at C.7.3 of the IANA Functions Contract has been published at http://www.iana.org/about/framework (attached as PDF here). It was also the subject of a DIDP Request, which can be reviewed here: https://www.icann.org/resources/pages/20150120-1-2015-02-24-en. Best, Grace

5 5

Re: [CWG-Stewardship] Principles: revised draft 9 March
by John Poole March 10, 2015

March 10, 2015

Martin: Your footnote sounds good to me. Thanks for the reply. Best regards, John Poole On Mon, Mar 9, 2015 at 6:52 PM, Martin Boyle <Martin.Boyle(a)nominet.org.uk> wrote: > I have no objection to doing this – the wording is fine for me. The > first use of the term is in 5.ii, so I will add the footnote there for the > next revision: I’d suggest, “The term IANA functions operator refers to > the entity organisational structure that provides the service. It is > independent of the organisation that hosts the operator, currently ICANN.” > > > > But I’m more than happy to hear alternatives. > > > > Martin > > > > *From:* john(a)expri.com [mailto:john@expri.com] *On Behalf Of *John Poole > *Sent:* 09 March 2015 22:51 > *To:* Milton L Mueller > *Cc:* Martin Boyle; cwg-stewardship(a)icann.org > > *Subject:* Re: [CWG-Stewardship] Principles: revised draft 9 March > > > > Milton, > Your definition is fine so long as that is specific definition is added to > the document (even as a footnote). The term is widely used to refer to > ICANN generally, in NTIA, ICANN, and other documents, and I do not want > confusion in the future, either by the CWG or others who may later read > this. > > Best regards, > > John Poole > > > > On Mon, Mar 9, 2015 at 4:29 PM, Milton L Mueller <mueller(a)syr.edu> wrote: > > I thought we had agreed long ago that all references to the IANA functions > operator were to the IANA functions operator per se, and not to ICANN, > because it cannot and should not be assumed that ICANN will always be the > IANA functions operator. > > > > *From:* cwg-stewardship-bounces(a)icann.org [mailto: > cwg-stewardship-bounces(a)icann.org] *On Behalf Of *John Poole > *Sent:* Monday, March 9, 2015 4:30 PM > *To:* Martin Boyle > *Cc:* cwg-stewardship(a)icann.org > *Subject:* Re: [CWG-Stewardship] Principles: revised draft 9 March > > > > Martin: > > I know this has been raised before but I am still unsure of your > terminology--please define "IANA Functions Operator" which appears multiple > times in various contexts in the draft of Principles. Are you referring > only to the IANA department within ICANN, or are you referring to ICANN? > ICANN is referred to generally as the "IANA Functions Operator" in NTIA > and ICANN and other documents > <https://www.google.com/search?q=IANA+functions+operator>. The draft > Principles seem to use the term in places as referring to ICANN and other > places as referring only to the IANA department within ICANN--*e.g.*, in > 5 iii: "... policy processes should be independent of the IANA Functions > Operator ..."* i.e.,* policy processes should be independent of ICANN? > Then who is making policy? Could you please clarify? > > Best regards, > > John Poole > > > > On Mon, Mar 9, 2015 at 12:34 PM, Martin Boyle <Martin.Boyle(a)nominet.org.uk> > wrote: > > Dear Colleagues, > > > > I attach a revised draft of the principles document based on our calls on > 3 & 5 March. I believe we have a text that is pretty much in its final > form, with only one outstanding issue. > > > > Looking at the remaining highlighted changes: > > > > 5.ii & iii: These are mainly editorial and have been discussed without > opposition on recent calls. > > > > 5.iv footnote: We had comments about the meaning of consensus in the > footnote. I do not think that defining consensus is in the remit of this > document, but is part of the considerations of any entity that we > establish. Hence I have added, “Conditions for consensus will need to be > agreed appropriate for the group” to make this clear. > > > > 5.vi: As I said when I flagged this paragraph as of concern, I am > inherently uneasy about a principle that is essentially optional and where > it might need to be re-written because of subsequent choices that we make. > Either it is a principle or it isn’t. I believe that we need to understand > the implications of what we are trying to say, so I am taking editor’s > right to propose a new formulation that should be independent of subsequent > decisions. > > > > 6.ii: Was agreed as not being a principle last week. > > > > 7.i: Editing agreed last week. > > > > 7.ii: We took this off-line. There has been some progress in discussions > with Paul and Elise. I have made a drafting proposal to both for wording > that tries to take into account the concerns they have expressed. However, > this paragraph needs to be held in abeyance until we have heard the views > of both. > > > > 8.ii: In discussion with Erick, we have identified a compromise that > moves away from saying anything about the policy authority and who it might > or might not be. The proposed wording (“In particular, the IANA functions > operator should not impose any additional requirements on the registry > unless they are directly and demonstrably linked to global security, > stability and resilience of the DNS.”) turns this around to prevent the > IANA functions operator making unilateral decisions that impact the ccTLD > except in (rare) cases of global security, stability and resilience. *Given > the delicate balance behind this text, I hope that others will find this > formulation acceptable* and I thank Erick for his support in finding this > compromise. > > > > 9.i: A minor point here that was discussed last week. The wording is not > necessary to the text, but does make it clearer that i. is about > separability now and iii. says we would need to include separability for > all future IANA functions operators. > > > > 10: A reasonable edit proposed by Mary last week: no objections have > been raised. > > > > Hence I would hold 5.ii-iv, 6.ii, 7.i, 9.i and 10 to be agreed text if > there are no objections. > > > > 5.iv: I suggest we use the new wording unless there is significant > opposition. > > > > 7.ii: This has to stay in abeyance subject to agreement by Elise (in > discussion with the GAC) and by Paul Kane. > > > > 8.ii: Again I suggest we use the proposed wording unless there is > significant opposition. > > > > I look forward to comments on this approach, and please do flag early any > difficulties you might have with any of the proposals. > > > > Best > > > > > > Martin > > > > > > > > > > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship > > > > >

1 0

Re: [CWG-Stewardship] Sidley Austin LLP
by John Poole March 10, 2015

March 10, 2015

Jonathan: I find this very troubling. ICANN is the client. Specifically, CWG-Stewardship is NOT the client, so what good is Sidley Austin's advice? Sidley Austin owes CWG-Stewardship none of the duties required of attorneys to clients under the California Code of Professional Responsibility. This is not what I understood CWG-Stewardship was getting, and I feel CWG-Stewardship has been intentionally misled. For all intents and purposes, ICANN could have made the same arrangements with Jones Day as they did with Sidley Austin, and saved us the time and trouble. Has anyone on the Client Committee reviewed independently the California Code of Professional Conduct and sought the opinion of a qualified non-interested California Attorney before agreeing to this? There are serious ramifications as to who is the named "client"--including the duty of loyalty--of which ICANN legal staff and Sidley Austin are fully aware. When did the Client Committee agree that the client for our "independent legal counsel" would be ICANN? Why was that not disclosed until now to all members and participants of CWG-Stewardship? Jonathan, is this what you mean by "good faith?" Let me make this plain for everyone--what the Client Committee has obtained is "ICANN outside Legal Counsel" for our use, but NOT Independent Legal Counsel--"Independent" means "independent of ICANN." Now I understand why ICANN legal staff and Jones Day have been intimately involved in the Client Committee process while members and participants of CWG-Stewardship were intentionally kept in the dark. This is not "good faith"--this reeks of "bad faith." -- John Poole On Mon, Mar 9, 2015 at 4:16 PM, Jonathan Robinson < jonathan.robinson(a)ipracon.com> wrote: > All, > > > > You may find the attached a more easily digestible summary of key terms. > > > > Jonathan > > > > *From:* Jonathan Robinson [mailto:jrobinson@afilias.info] > *Sent:* 09 March 2015 21:06 > *To:* cwg-stewardship(a)icann.org > *Subject:* RE: Sidley Austin LLP > > > > All, > > > > Please see attached for the executed engagement letter with Sidley Austin. > > > > Jonathan > > > > *From:* Jonathan Robinson [mailto:jrobinson@afilias.info > <jrobinson(a)afilias.info>] > *Sent:* 08 March 2015 21:46 > *To:* cwg-stewardship(a)icann.org > *Subject:* Sidley Austin LLP > > > > Dear All, > > > > As of Friday 6 March, the CWG-Stewardship has engaged Sidley Austin LLP to > advise and consult on the CWG’s development of a transition proposal. > > > > In the past two weeks, the Client Committee shortlisted three firms, > interviewed each of them, and retained one. We chose to retain Sidley > primarily because they envisaged the engagement as consultation rather than > pure advice. In addition, Sidley presented a strong governance focus as > well as specific experience with the U.S. political environment (including > a former Congressman and a former Department of Commerce appointee). > > > > Sidley is aware of the CWG’s tight timeframe and accepts the requirement > for highly transparent work methods. Also, the client relationship has been > clearly defined and emphasized in the retention letter in that *ICANN has > instructed Sidley to take direction exclusively from and provide advice and > consultation exclusively to the CWG, primarily through the CWG’s Client > Committee*. > > > > Sidley has no previous client relationship with ICANN. No conflicts were > identified, however please note that Greg Shatan and Holly Gregory from > Sidley worked at the same firm over a decade ago. > > > > The Client Committee will meet with Sidley Austin on Monday. This call > will be recorded and transcribed and we will then provide an update to the > CWG on Tuesday’s call, where we also plan to introduce the Sidley team to > the CWG. > > > > Best wishes, > > > > > > > Jonathan & Lise > > > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship(a)icann.org > https://mm.icann.org/mailman/listinfo/cwg-stewardship > >

3 3

Sidley Austin LLP
by Jonathan Robinson March 9, 2015

March 9, 2015

Dear All, As of Friday 6 March, the CWG-Stewardship has engaged Sidley Austin LLP to advise and consult on the CWG's development of a transition proposal. In the past two weeks, the Client Committee shortlisted three firms, interviewed each of them, and retained one. We chose to retain Sidley primarily because they envisaged the engagement as consultation rather than pure advice. In addition, Sidley presented a strong governance focus as well as specific experience with the U.S. political environment (including a former Congressman and a former Department of Commerce appointee). Sidley is aware of the CWG's tight timeframe and accepts the requirement for highly transparent work methods. Also, the client relationship has been clearly defined and emphasized in the retention letter in that ICANN has instructed Sidley to take direction exclusively from and provide advice and consultation exclusively to the CWG, primarily through the CWG's Client Committee. Sidley has no previous client relationship with ICANN. No conflicts were identified, however please note that Greg Shatan and Holly Gregory from Sidley worked at the same firm over a decade ago. The Client Committee will meet with Sidley Austin on Monday. This call will be recorded and transcribed and we will then provide an update to the CWG on Tuesday's call, where we also plan to introduce the Sidley team to the CWG. Best wishes, Jonathan & Lise

8 11