Hi Paul I share your interest in seeing some suggestions from legal advisors on your points below. Thanks. Matthew On 4/7/2015 10:58 PM, Paul M Kane - CWG wrote:

Thanks Lise

I appreciate the opinion given by Sidley with respect to the functional separation and I see that it may not deliver the required safeguards.

Yes we want better functional separation, a dedicated budget and improvements to the reporting given to the community .... yes we all want ICANN's current IANA staff to deliver service but things change, especially when people/performance change..... hence.....

I would like to specifically ask Sidley to give formal advise on how best to ensure an affiliate company (as part of ICANN Community) can be the custodian for the Stewardship role currently undertaken by NTIA.

Specifically, a limited scope multi-stakeholder company with a CSC style body that in the event of ICANN's IANA staff being unable to perform to the prescribed SLE, or ICANN corporate deciding that they no longer wish to deliver the IANA service that triggers the affiliated company to: • publish an objective service orientated RFP; • invite interested parties to deliver IANA service(s) and respond to the RFP; • to select and contract with the operator best able to serve IANA’s customers.

Unfortunately my day job has caused me to undertake the next 10 days of travel, so I will be on the call(s) as and when possible. Please accept my apologies for any calls missed... and hope someone will be kind enough to express the views I have already conveyed.

Kind regards to all

Best

Paul

Quoting Lise Fuhr <lise.fuhr@difo.dk>:

...

Dear all,

Many of you were eager to discuss the memo from Sidley on our CWG call today. To reaffirm what I said on the call, we will have a full discussion of this memo during the high-intensity meetings on Monday and Tuesday next week.

As part of preparation for the group and for the legal counsel, we've asked that you provide written questions and comments on list. While these two phases (preparation, then discussion) seem to draw out the conversation, we believe it actually makes for a more productive discussion for all parties. Having written questions in advance allows for the group to read and digest the information, and for the legal counsel to prepare their briefing to the group. We used this approach for the Istanbul meeting and found that the preparation played an key part in the success of the discussion.

Once more I would like to encourage you to send your questions and comments to the list by 13:00 UTC on Thursday so that they may be compiled and presented to the Client Committee for their call.

Best regards,

Lise

_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

-- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 (0)771 247 2987

-----Original Message----- On Tue, Apr 07, 2015 at 10:58:30PM +0100, Paul M Kane - CWG wrote:

...

I would like to specifically ask Sidley to give formal advise on how best to ensure an affiliate company (as part of ICANN Community) can be the custodian for the Stewardship role currently undertaken by NTIA.

I thought in the Sidley documents, ICANN was taking the Stewardship role currently held by NTIA, and PTI does the IANA part, at least if there's an affiliate company. Did I misunderstand?

You did not misunderstand the Sidley-Austin discussion draft. You are, I think, misunderstanding Paul Kane. Paul seems to be asking that the Affiliate be more like the Contract Co.

All: If you pass the stewardship to the PTI, then the model starts to looks like one of the models that was discarded in Istanbul. That model was the one where the three entities, i.e. ICANN, RIRs and IETF, would have direct contracts with and "independent" PTI. This model was discarded because of its complexity (in the legal context). -ed On Thu, Apr 9, 2015 at 2:37 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

I second what Milton is saying. I think Paul is proposing essentially an inversion of the Sidley Austin model (and by extension the "Integrated Hybrid Model" or the "Internal Model with Structural Separation"). As I read Paul's suggestion, instead of having the affiliate be the "Post-Transition IANA" (i.e., the IANA Functions operations "in a box"), the affiliate would be the "Post-Transition Oversight/Accountability Mechanism" ("PTOAM"?). Presumably, this would keep the IANA Functions operations inside of ICANN as a (functionally separated) unit. The PTOAM would then be much like Contract Co. (although [possibly] "affiliated" with ICANN rather than completely independent).

Greg

*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*

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On Thu, Apr 9, 2015 at 2:27 PM, Milton L Mueller <mueller@syr.edu> wrote:

...

...

-----Original Message----- On Tue, Apr 07, 2015 at 10:58:30PM +0100, Paul M Kane - CWG wrote:

...

I would like to specifically ask Sidley to give formal advise on how best to ensure an affiliate company (as part of ICANN Community) can be the custodian for the Stewardship role currently undertaken by NTIA.

I thought in the Sidley documents, ICANN was taking the Stewardship role currently held by NTIA, and PTI does the IANA part, at least if there's an affiliate company. Did I misunderstand?

You did not misunderstand the Sidley-Austin discussion draft. You are, I think, misunderstanding Paul Kane. Paul seems to be asking that the Affiliate be more like the Contract Co.

_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

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And I thought that we just a week ago decided not to work on that model for now. From: Matthew Shears <mshears@cdt.org<mailto:mshears@cdt.org>> Date: Thursday 9 April 2015 22:04 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Milton Mueller <mueller@syr.edu<mailto:mueller@syr.edu>> Cc: "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] Remember to send questions and comments to legal advice from Sidley Austin I also think this is what Paul was suggesting. On 4/9/2015 7:37 PM, Greg Shatan wrote: I second what Milton is saying. I think Paul is proposing essentially an inversion of the Sidley Austin model (and by extension the "Integrated Hybrid Model" or the "Internal Model with Structural Separation"). As I read Paul's suggestion, instead of having the affiliate be the "Post-Transition IANA" (i.e., the IANA Functions operations "in a box"), the affiliate would be the "Post-Transition Oversight/Accountability Mechanism" ("PTOAM"?). Presumably, this would keep the IANA Functions operations inside of ICANN as a (functionally separated) unit. The PTOAM would then be much like Contract Co. (although [possibly] "affiliated" with ICANN rather than completely independent). 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@lawabel.com<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Thu, Apr 9, 2015 at 2:27 PM, Milton L Mueller <mueller@syr.edu<mailto:mueller@syr.edu>> wrote:

-----Original Message----- On Tue, Apr 07, 2015 at 10:58:30PM +0100, Paul M Kane - CWG wrote:

...

I would like to specifically ask Sidley to give formal advise on how best to ensure an affiliate company (as part of ICANN Community) can be the custodian for the Stewardship role currently undertaken by NTIA.

I thought in the Sidley documents, ICANN was taking the Stewardship role currently held by NTIA, and PTI does the IANA part, at least if there's an affiliate company. Did I misunderstand?

You did not misunderstand the Sidley-Austin discussion draft. You are, I think, misunderstanding Paul Kane. Paul seems to be asking that the Affiliate be more like the Contract Co. _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org>https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 (0)771 247 2987

-----Original Message-----

That's what I thought, too. I also predict heat death of the universe prior to successful conclusion of work on such a model, which is why it didn't even occur to me that it's what could be meant.

Come on, Andrew. That model is no more complicated than either the hybrid (legal separation) or the internal. People keep overlooking the massive internal bylaw changes that have to occur to make the internal models acceptable and workable.

On Thu, Apr 09, 2015 at 09:45:51PM +0000, Milton L Mueller wrote:

Come on, Andrew. That model is no more complicated than either the hybrid (legal separation) or the internal. People keep overlooking the massive internal bylaw changes that have to occur to make the internal models acceptable and workable.

I can see an argument about quite how complicated the bylaw changes would be. I am not entirely convinced, but I can certainly see its force. By contrast, it seems to me that setting up an organization that is tightly confined to IANA has _got_ to be much less work than setting up an organization that is responsible for accountability over policy. You can put lots of restrictions on what can get into the IANA organization, and thereby restrict the kinds of policies that it is allowed to implement to be just like the kinds of thing that are already done routinely. All of that is working fine anyway, as far as anyone has been able to say, so just emulating the thing that's working shouldn't be a tall order. Building a new set of accountability controls over policy, on the other hand, sounds like a messy job that could take ages (for some value of "ages", where one such possible value is ∞). Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com

Yes Greg. 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. 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. Best Paul PS Sorry for the delay in replying - I am traveling and my day job is getting in the way of rapid replies. Quoting Greg Shatan <gregshatanipc@gmail.com>:

the affiliate would be the "Post-Transition Oversight/Accountability Mechanism" ("PTOAM"?). Presumably, this would keep the IANA Functions operations inside of ICANN as a (functionally separated) unit. The PTOAM would then be much like Contract Co. (although [possibly] "affiliated" with ICANN rather than completely independent).

Greg *Gregory S. Shatan **ï* *Abelman Frayne & Schwab*

*Partner* *| IP | Technology | Media | Internet*

*666 Third Avenu> e | New York, NY 10017-5621*

*Direct* 212-885-9253 *| **Main* 212-949-9022

*Fax* 212-949-9190 *|* *Cell *917-816-6428

*gsshatan@lawabel.com <gsshatan@lawabel.com>*

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*www.lawabel.com <http://www.lawabel.com/>*

On Thu, Apr 9, 2015 at 2:27 PM, Milton L Mueller <mueller@syr.edu> wrote:

...

...

-----Original Message----- On Tue, Apr 07, 2015 at 10:58:30PM +0100, Paul M Kane - CWG wrote:

...

I would like to specifically ask Sidley to give formal advise on how best to ensure an affiliate company (as part of ICANN Community) can be the custodian for the Stewardship role currently undertaken by

NTIA.

...

...

I thought in the Sidley documents, ICANN was taking the Stewardship role currently held by NTIA, and PTI does the IANA part, at least if there's

an

...

affiliate company. Did I misunderstand?

You did not misunderstand the Sidley-Austin discussion draft. You are, I think, misunderstanding Paul Kane. Paul seems to be asking that the Affiliate be more like the Contract Co.

_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

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@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>* *www.lawabel.com <http://www.lawabel.com/>* On Fri, Apr 10, 2015 at 12:17 PM, Andrew Sullivan <ajs@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@anvilwalrusden.com _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

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@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: Friday, April 10, 2015 2:45 PM To: Greg Shatan; Andrew Sullivan Cc: cwg-stewardship@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@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Greg Shatan Sent: Friday, April 10, 2015 2:26 PM To: Andrew Sullivan Cc: cwg-stewardship@icann.org<mailto:cwg-stewardship@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 • 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@lawabel.com<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Fri, Apr 10, 2015 at 12:17 PM, Andrew Sullivan <ajs@anvilwalrusden.com<mailto:ajs@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@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship

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@syr.edu] *Sent:* Friday, April 10, 2015 6:04 PM *To:* Gomes, Chuck; Greg Shatan *Cc:* cwg-stewardship@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@icann.org <mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] *On Behalf Of *Gomes, Chuck *Sent:* Friday, April 10, 2015 2:45 PM *To:* Greg Shatan; Andrew Sullivan *Cc:* cwg-stewardship@icann.org <mailto:cwg-stewardship@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@icann.org <mailto:cwg-stewardship-bounces@icann.org>[mailto:cwg-stewardship-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Friday, April 10, 2015 2:26 PM *To:* Andrew Sullivan *Cc:* cwg-stewardship@icann.org <mailto:cwg-stewardship@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@lawabel.com/* <mailto:gsshatan@lawabel.com>

*ICANN-related: **/gregshatanipc@gmail.com/* <mailto:gregshatanipc@gmail.com>

*/www.lawabel.com/* <http://www.lawabel.com/>

On Fri, Apr 10, 2015 at 12:17 PM, Andrew Sullivan <ajs@anvilwalrusden.com <mailto:ajs@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@anvilwalrusden.com <mailto:ajs@anvilwalrusden.com>

_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship

_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

-- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 (0)771 247 2987

So, what exactly is the 'agreed course' today? CW On 11 Apr 2015, at 19:13, Matthew Shears <mshears@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@syr.edu] Sent: Friday, April 10, 2015 6:04 PM To: Gomes, Chuck; Greg Shatan Cc: cwg-stewardship@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@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: Friday, April 10, 2015 2:45 PM To: Greg Shatan; Andrew Sullivan Cc: cwg-stewardship@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@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Greg Shatan Sent: Friday, April 10, 2015 2:26 PM To: Andrew Sullivan Cc: cwg-stewardship@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@lawabel.com ICANN-related: gregshatanipc@gmail.com www.lawabel.com

On Fri, Apr 10, 2015 at 12:17 PM, Andrew Sullivan <ajs@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@anvilwalrusden.com _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

-- Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 (0)771 247 2987 _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship

Hi, On Fri, Apr 10, 2015 at 09:52:22PM +0000, Milton L Mueller wrote:

That depends on why one thinks the current situation is dissatisfying. I, and most of the rest of the world, thought it was unacceptable because a single national government had unilateral control and oversight authority over a global resource, the DNS.

I have two reactions to this. On the one hand, I agree that it's pretty galling, and I think it ought to be sorted out. On the other hand, the political reality makes serious interference an extremely grave incident. And, the UN GA meets in New York, after all. So the mere fact that a US administration is formally but not practically involved in the administrative arrangements doesn't seem like the biggest deal in the world, to me.[1] I am concerned only that we deliver a model that is unlikely to render _effective_ control, over the short and long terms, to any one party (or collusion of interests). Moreover, my view has been that we're moving control over IANA only (to the extent there is that), and not over all the related policy-making organizations. I therefore think we ought to focus on the narrow questions, and not attempt to solve a huge array of problems. If we try to construct a new oversight body (that's what, after all, creating a steward would mean), it will necessarily lead us to explore all the oversight issues that have ever consumed ICANN since its founding. We'll also, I suggest, get it wrong, and end up with a new structure that could be gamed in new and unanticipated ways. If we try instead to work on something that is narrowly constrained to the IANA functions that actually need to be done, we have some hope of creating something (and creating something on time for the transition). Note that part of my concern is that we do this in time: in my opinion, if we don't achieve our goal before the end of this (calendar) year, we won't achieve it at all. Permitting the perfect to be the enemy of the good (enough) in this case would be terrible. Best regards, A (as always, only for myself) [1] Full disclosure: I'm a dual US-Canada citizen who never lived in the US before 2013. I grew up with the full measure of Canadian border-raised resentment of the US, and an additional measure from having to file US tax returns even when I had no US income. I happen to live in the US now, but am right now listening to the news from the Canadian Broadcasting Corporation. You may judge my US-interestedness as you like. -- Andrew Sullivan ajs@anvilwalrusden.com

SO: I thought we got passed the external oversight stuff hence the reason for dropping "contract co" and the only issue was whether separability was possible with functional separation. If that is the case, i think we have indeed gotten confirmation from legal that it's possible but with the difficulty clause. If NTIA were to decide to move MM: First, we didn’t “drop” Contract Co because we all agreed there was no need for external oversight. I think everyone agrees there is a need for separabiity (it is in the principles) and some form of oversight. Further, contrary to what some have suggested here, the legal advisors never claimed Contract Co was not possible to do or “didn’t work.” We set aside Contract Co because we all know what it is and we also know that it doesn’t have consensus. We were exploring middle-ground options to see if they could get more stakeholder groups on board. SO: That said, I think we are taking legal separation of IANA as the sole goal of this working group which is not the case. Keeping the operator of IANA accountable is the main goal and I hope we could focus on this in 90%+ MM: Legal separation is all about keeping the operator of the IANA functions accountable. It keeps the IANA performance out of the morass of ICANN’s policy making process and provides a targeted governance structure that is focused on the IANA functions specifically. That’s about accountability.