Question for Sidley
Are there any legal issues that the CWG should be concerned with if it considered proposing a functional separation model for the initial transition and a legal separation model if needed at a later date? Chuck “This message (including any attachments) is intended only for the use of the individual or entity to which it is addressed, and may contain information that is non-public, proprietary, privileged, confidential and exempt from disclosure under applicable law or may be constituted as attorney work product. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this message in error, notify sender immediately and delete this message immediately.”
Chuck: I don’t know about the legal issues, but a “legal separation if needed later” model strikes me as a very poorly thought- out idea. There were three key advantages the S-A discussion draft identified for legal separation. One was that creating a legally distinct affiliate now would make it future separation more stable and easy. In other words, if you don’t lay the groundwork for separability now, it won’t ever happen, or if we try to make it happen t will be very ugly and destabilizing. The other was that there would be an explicit contract between ICANN and IANA. The third was that there would be a distinct governance body devoted to IANA performance and oversight issues. There was also a fourth advantage – an important one that you seem to have overlooked – raised by Mr. Boucher, which is that the legal separation dramatically increases chances of getting Congressional approval. The idea of “legal separation if needed later” sacrifices all four of those virtues for the present, with a promise that, somehow, we will move to it if needed later. But this doesn’t make sense to me. First, without Congressional approval there may be no transition at all. Second, assuming we follow this model who would decide if it is “needed”? Your proposal provides no mechanism for actually doing it, so in effect the promise of “if needed” is a hollow one. Third If it might be needed in the future, why not do it now? Further, the purely internal model that you would propose for the short term would require major by-law changes to be implemented for accountability purposes (people keep sweeping that fact under the rug). These by-law changes have to be carefully coordinated with the CCWG in a complex process. So apparently you want ICANN and its community to make a lot of complex and interdependent by-law changes and then discard them later or change the rules again? No, this idea doesn’t pass the laugh test. We have to choose one or the other. From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: Wednesday, April 8, 2015 9:10 PM To: cwg-stewardship@icann.org Subject: [CWG-Stewardship] Question for Sidley Are there any legal issues that the CWG should be concerned with if it considered proposing a functional separation model for the initial transition and a legal separation model if needed at a later date? Chuck “This message (including any attachments) is intended only for the use of the individual or entity to which it is addressed, and may contain information that is non-public, proprietary, privileged, confidential and exempt from disclosure under applicable law or may be constituted as attorney work product. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this message in error, notify sender immediately and delete this message immediately.”
MM: I don’t know about the legal issues, but a “legal separation if needed later” model strikes me as a very poorly thought- out idea. SO: If I were to plan for possible fire outbreak in a house, I won't start by building my own fire station for the building. Instead I will ensure there is a mechanism in the house that alerts the fire station whenever they are required, that way I remove the huge overhead of hosting/running a fire station even though I may never use it. Last from me for tonight ;-) Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 9 Apr 2015 19:49, "Milton L Mueller" <mueller@syr.edu> wrote:
Chuck:
I don’t know about the legal issues, but a “legal separation if needed later” model strikes me as a very poorly thought- out idea.
There were three key advantages the S-A discussion draft identified for legal separation. One was that creating a legally distinct affiliate now would make it future separation more stable and easy. In other words, if you don’t lay the groundwork for separability now, it won’t ever happen, or if we try to make it happen t will be very ugly and destabilizing. The other was that there would be an explicit contract between ICANN and IANA. The third was that there would be a distinct governance body devoted to IANA performance and oversight issues.
There was also a fourth advantage – an important one that you seem to have overlooked – raised by Mr. Boucher, which is that the legal separation dramatically increases chances of getting Congressional approval.
The idea of “legal separation if needed later” sacrifices all four of those virtues for the present, with a promise that, somehow, we will move to it if needed later. But this doesn’t make sense to me. First, without Congressional approval there may be no transition at all. Second, assuming we follow this model who would decide if it is “needed”? Your proposal provides no mechanism for actually doing it, so in effect the promise of “if needed” is a hollow one. Third If it might be needed in the future, why not do it now?
Further, the purely internal model that you would propose for the short term would require major by-law changes to be implemented for accountability purposes (people keep sweeping that fact under the rug). These by-law changes have to be carefully coordinated with the CCWG in a complex process. So apparently you want ICANN and its community to make a lot of complex and interdependent by-law changes and then discard them later or change the rules again?
No, this idea doesn’t pass the laugh test. We have to choose one or the other.
*From:* cwg-stewardship-bounces@icann.org [mailto: cwg-stewardship-bounces@icann.org] *On Behalf Of *Gomes, Chuck *Sent:* Wednesday, April 8, 2015 9:10 PM *To:* cwg-stewardship@icann.org *Subject:* [CWG-Stewardship] Question for Sidley
Are there any legal issues that the CWG should be concerned with if it considered proposing a functional separation model for the initial transition and a legal separation model if needed at a later date?
Chuck “This message (including any attachments) is intended only for the use of the individual or entity to which it is addressed, and may contain information that is non-public, proprietary, privileged, confidential and exempt from disclosure under applicable law or may be constituted as attorney work product. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this message in error, notify sender immediately and delete this message immediately.”
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Seun Legal separation is more analogous to building your house according to the fire code; with proper insulation and doors that shut off parts of the building that would become wind tunnels should a fire break out. Once a fire breaks out, you can’t add those features to your building; it’s too late. They have to be part of the architecture. From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Thursday, April 9, 2015 6:38 PM To: Milton L Mueller Cc: Chuck Gomes; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Question for Sidley MM: I don’t know about the legal issues, but a “legal separation if needed later” model strikes me as a very poorly thought- out idea. SO: If I were to plan for possible fire outbreak in a house, I won't start by building my own fire station for the building. Instead I will ensure there is a mechanism in the house that alerts the fire station whenever they are required, that way I remove the huge overhead of hosting/running a fire station even though I may never use it. Last from me for tonight ;-) Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 9 Apr 2015 19:49, "Milton L Mueller" <mueller@syr.edu<mailto:mueller@syr.edu>> wrote: Chuck: I don’t know about the legal issues, but a “legal separation if needed later” model strikes me as a very poorly thought- out idea. There were three key advantages the S-A discussion draft identified for legal separation. One was that creating a legally distinct affiliate now would make it future separation more stable and easy. In other words, if you don’t lay the groundwork for separability now, it won’t ever happen, or if we try to make it happen t will be very ugly and destabilizing. The other was that there would be an explicit contract between ICANN and IANA. The third was that there would be a distinct governance body devoted to IANA performance and oversight issues. There was also a fourth advantage – an important one that you seem to have overlooked – raised by Mr. Boucher, which is that the legal separation dramatically increases chances of getting Congressional approval. The idea of “legal separation if needed later” sacrifices all four of those virtues for the present, with a promise that, somehow, we will move to it if needed later. But this doesn’t make sense to me. First, without Congressional approval there may be no transition at all. Second, assuming we follow this model who would decide if it is “needed”? Your proposal provides no mechanism for actually doing it, so in effect the promise of “if needed” is a hollow one. Third If it might be needed in the future, why not do it now? Further, the purely internal model that you would propose for the short term would require major by-law changes to be implemented for accountability purposes (people keep sweeping that fact under the rug). These by-law changes have to be carefully coordinated with the CCWG in a complex process. So apparently you want ICANN and its community to make a lot of complex and interdependent by-law changes and then discard them later or change the rules again? No, this idea doesn’t pass the laugh test. We have to choose one or the other. From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org>] On Behalf Of Gomes, Chuck Sent: Wednesday, April 8, 2015 9:10 PM To: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: [CWG-Stewardship] Question for Sidley Are there any legal issues that the CWG should be concerned with if it considered proposing a functional separation model for the initial transition and a legal separation model if needed at a later date? Chuck “This message (including any attachments) is intended only for the use of the individual or entity to which it is addressed, and may contain information that is non-public, proprietary, privileged, confidential and exempt from disclosure under applicable law or may be constituted as attorney work product. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this message in error, notify sender immediately and delete this message immediately.” _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
On Thu, Apr 09, 2015 at 10:52:00PM +0000, Milton L Mueller wrote:
Once a fire breaks out, you can’t add those features to your building; it’s too late. They have to be part of the architecture.
I'll see your analogy, and raise you one: it is possible to build a fire-code-conforming multi-tenant building. Indeed, you can build quite good ones that have both commercial and residential space in them. And you can do this in a building where there are already occupants of various kinds. Of course, that takes longer, because of the disruption to the residents. It still might take less time and be less wasteful than building two new buildings and then moving everyone from the old bulding to the new ones. That is a question of trade-offs and how rickety the existing structure is. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Milton, Please see my responses below. Chuck From: Milton L Mueller [mailto:mueller@syr.edu] Sent: Thursday, April 09, 2015 2:48 PM To: Gomes, Chuck; cwg-stewardship@icann.org Subject: RE: Question for Sidley Chuck: I don’t know about the legal issues, but a “legal separation if needed later” model strikes me as a very poorly thought- out idea. There were three key advantages the S-A discussion draft identified for legal separation. One was that creating a legally distinct affiliate now would make it future separation more stable and easy. In other words, if you don’t lay the groundwork for separability now, it won’t ever happen, or if we try to make it happen t will be very ugly and destabilizing. The other was that there would be an explicit contract between ICANN and IANA. The third was that there would be a distinct governance body devoted to IANA performance and oversight issues. There was also a fourth advantage – an important one that you seem to have overlooked – raised by Mr. Boucher, which is that the legal separation dramatically increases chances of getting Congressional approval. [Chuck Gomes] I haven’t overlooked any of the possible advantages of the legal separation model but instead am also considering possible disadvantages of it in addition to the advantages. One advantage is that it would involve a simpler transition with lest risk of destabilizing current services. Another is that would likely be less complex. A third is that it could probably be implemented in a more timely manner, assuming of course as you point out below that the internal accountability mechanisms can be implemented in a timely manner including bylaws changes, an assumption I know is a big one. The idea of “legal separation if needed later” sacrifices all four of those virtues for the present, with a promise that, somehow, we will move to it if needed later. But this doesn’t make sense to me. First, without Congressional approval there may be no transition at all. Second, assuming we follow this model who would decide if it is “needed”? Your proposal provides no mechanism for actually doing it, so in effect the promise of “if needed” is a hollow one. Third If it might be needed in the future, why not do it now? [Chuck Gomes] It is not impossible that the functional separation model could work out well if the accountability mechanisms are well designed and implemented. If it did, there would be little if any sacrifice. Of course we don’t know at this point in time. That is one reason why it might make sense to give it a shot. And that could be done in multiple ways; here are a couple ways: 1) implement it and then switch to the legal separation approach if needed; 2) implement it with the clear understanding that we would switch to the legal separation approach in a specified time period (e.g., 12-18 months). The latter approach would allow plenty of time to do it right while still facilitating a quicker transition. Further, the purely internal model that you would propose for the short term would require major by-law changes to be implemented for accountability purposes (people keep sweeping that fact under the rug). These by-law changes have to be carefully coordinated with the CCWG in a complex process. So apparently you want ICANN and its community to make a lot of complex and interdependent by-law changes and then discard them later or change the rules again? No, this idea doesn’t pass the laugh test. We have to choose one or the other. [Chuck Gomes] I am not laughing but I am trying to think of alternative ways of achieving what I think we all want in the best way possible considering all variables. From: cwg-stewardship-bounces@icann.org<mailto:cwg-stewardship-bounces@icann.org> [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Gomes, Chuck Sent: Wednesday, April 8, 2015 9:10 PM To: cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org> Subject: [CWG-Stewardship] Question for Sidley Are there any legal issues that the CWG should be concerned with if it considered proposing a functional separation model for the initial transition and a legal separation model if needed at a later date? Chuck “This message (including any attachments) is intended only for the use of the individual or entity to which it is addressed, and may contain information that is non-public, proprietary, privileged, confidential and exempt from disclosure under applicable law or may be constituted as attorney work product. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this message in error, notify sender immediately and delete this message immediately.”
Dear colleagues, On Fri, Apr 10, 2015 at 11:14:31PM +0000, Gomes, Chuck wrote:
2) implement it with the clear understanding that we would switch to the legal separation approach in a specified time period (e.g., 12-18 months). The latter approach would allow plenty of time to do it right while still facilitating a quicker transition.
This is a fetching idea. What would it take to institute the binding legal regime that would allow us to do the internal model for some defined period and then, if need be, force a new model? I know this is a little late compared to the desired deadlines, but would it be possible to ask Sidley about this as well? A -- Andrew Sullivan ajs@anvilwalrusden.com
Andrew, I submitted a question to be asked of Sidley before the deadline ending basically asking if there were any legal issues related to this type of scenario. Chuck -----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: Friday, April 10, 2015 7:20 PM To: cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Question for Sidley Dear colleagues, On Fri, Apr 10, 2015 at 11:14:31PM +0000, Gomes, Chuck wrote:
2) implement it with the clear understanding that we would switch to the legal separation approach in a specified time period (e.g., 12-18 months). The latter approach would allow plenty of time to do it right while still facilitating a quicker transition.
This is a fetching idea. What would it take to institute the binding legal regime that would allow us to do the internal model for some defined period and then, if need be, force a new model? I know this is a little late compared to the desired deadlines, but would it be possible to ask Sidley about this as well? A -- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
[Chuck Gomes] I haven’t overlooked any of the possible advantages of the legal separation model but instead am also considering possible disadvantages of it in addition to the advantages. One advantage is that it would involve a simpler transition with lest risk of destabilizing current services. MM: But it doesn’t really simplify. We’ve been through this time and again. The internal model is like a shell game in which the magician appears to make complexity disappear by hiding it under a shell - a bunch of unspecified internal bylaw and structural changes in ICANN, ranging from the minor to the huge (e.g., a membership structure). I am pointing out that the problem is under the shell, it has not gone away. MM: As for destabilizing current services, this is completely unconvincing. Making the existing IANA staff an affiliate doesn’t destabilize anything. You have the same people doing the same things. Another is that would likely be less complex. A third is that it could probably be implemented in a more timely manner, assuming of course as you point out below that the internal accountability mechanisms can be implemented in a timely manner including bylaws changes, an assumption I know is a big one. MM: Again, how do you simplify and speed up implementation by deferring the problem to a complete overhaul of ICANN’s policy making apparatus, board structure, membership mechanisms, appeals mechanisms, and bylaws? This argument just doesn’t hold water, I wonder why people keep making it. [Chuck Gomes] It is not impossible that the functional separation model could work out well if the accountability mechanisms are well designed and implemented. MM: It is impossible, because there is no clear target to the reform. If IANA is not legally separate then all the accountability mechanisms associated with it are part of ICANN’s overall accountability reforms. General ICANN accountability mechanisms of the sort the CCWG is working on are designed to make ICANN’s policy making process more responsive to the community. As you yourself once remarked to me,, “spilling the board” doesn’t improve IANA performance one bit, but it does upset and destabilize all of ICANN’s activities, of which IANA is a small part. Unless there is legal separation and a distinct PTI governance structure, none of your accountability mechanisms will be targeted specifically at the management or stewardship of the IANA functions. If you create IANA-specific governance structures with an internal model, then you have the same complexity, don’t you? But you don’t have the same effectiveness because the governance of IANA is not clearly separation from the governance of ICANN as a whole. MM: Further, a semantic issue. Let’s stop using this term “functional separation.” Or if you do use it, give us a clear definition as to how it is different from the status quo. There is no accurate and viable definition of it that you or anyone else has offered, other than that IANA remains a division of ICANN, managed by ICANN’s board, and subject to ICANN’s general accountability measures. “Functional separation,” so-called, is just an internal option. There is no separation there. If it did, there would be little if any sacrifice. Of course we don’t know at this point in time. That is one reason why it might make sense to give it a shot. MM: This is what I think is so completely misguided about your idea. We only have one shot at this. The politics are fraught both at the international and a the domestic level. People are investing an exhausting amount of time in this. Whatever happens in the first round will be what happens, period. I think you know this. If you want to argue for an internal option, argue for it directly. Don’t pretend that it is a step towards another option. It won’t be. --MM
I’m not really convinced by Milton’s arguments – Chuck is right to throw in the questions and I think it appropriate that they should be considered objectively. I agree that functional separation needs to be defined more clearly – I guess many of us are using it in our own ways. For me functional separation is to do with keeping a clear division between the different operational units of ICANN and the IANA functions operator – both in the policy-IANA separation (which is required under the NTIA contract) and the gTLDs/registry contracting role of ICANN and the IANA functions operator. I’m actually quite happy with looking to include much of the IANA functions operator accountability mechanisms under an enhanced ICANN accountability regime. In my mind this has one crucial element in it – that the stakeholders are present in ICANN already and accountability is to them. Move it somewhere else and the stakeholders have another organisation to watch. If we need to move the IANA functions operation out of ICANN later, yes, it might be comforting to have an existing model that can just be separated and handed to a new operator. But I guess it would be nearly just as easy to hive off a functionally independent unit to a new overlord as to move off a subsidiary (with its new management level, which is likely where the problem really is). Cheers Martin From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Milton L Mueller Sent: 11 April 2015 16:32 To: Gomes, Chuck; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Question for Sidley [Chuck Gomes] I haven’t overlooked any of the possible advantages of the legal separation model but instead am also considering possible disadvantages of it in addition to the advantages. One advantage is that it would involve a simpler transition with lest risk of destabilizing current services. MM: But it doesn’t really simplify. We’ve been through this time and again. The internal model is like a shell game in which the magician appears to make complexity disappear by hiding it under a shell - a bunch of unspecified internal bylaw and structural changes in ICANN, ranging from the minor to the huge (e.g., a membership structure). I am pointing out that the problem is under the shell, it has not gone away. MM: As for destabilizing current services, this is completely unconvincing. Making the existing IANA staff an affiliate doesn’t destabilize anything. You have the same people doing the same things. Another is that would likely be less complex. A third is that it could probably be implemented in a more timely manner, assuming of course as you point out below that the internal accountability mechanisms can be implemented in a timely manner including bylaws changes, an assumption I know is a big one. MM: Again, how do you simplify and speed up implementation by deferring the problem to a complete overhaul of ICANN’s policy making apparatus, board structure, membership mechanisms, appeals mechanisms, and bylaws? This argument just doesn’t hold water, I wonder why people keep making it. [Chuck Gomes] It is not impossible that the functional separation model could work out well if the accountability mechanisms are well designed and implemented. MM: It is impossible, because there is no clear target to the reform. If IANA is not legally separate then all the accountability mechanisms associated with it are part of ICANN’s overall accountability reforms. General ICANN accountability mechanisms of the sort the CCWG is working on are designed to make ICANN’s policy making process more responsive to the community. As you yourself once remarked to me,, “spilling the board” doesn’t improve IANA performance one bit, but it does upset and destabilize all of ICANN’s activities, of which IANA is a small part. Unless there is legal separation and a distinct PTI governance structure, none of your accountability mechanisms will be targeted specifically at the management or stewardship of the IANA functions. If you create IANA-specific governance structures with an internal model, then you have the same complexity, don’t you? But you don’t have the same effectiveness because the governance of IANA is not clearly separation from the governance of ICANN as a whole. MM: Further, a semantic issue. Let’s stop using this term “functional separation.” Or if you do use it, give us a clear definition as to how it is different from the status quo. There is no accurate and viable definition of it that you or anyone else has offered, other than that IANA remains a division of ICANN, managed by ICANN’s board, and subject to ICANN’s general accountability measures. “Functional separation,” so-called, is just an internal option. There is no separation there. If it did, there would be little if any sacrifice. Of course we don’t know at this point in time. That is one reason why it might make sense to give it a shot. MM: This is what I think is so completely misguided about your idea. We only have one shot at this. The politics are fraught both at the international and a the domestic level. People are investing an exhausting amount of time in this. Whatever happens in the first round will be what happens, period. I think you know this. If you want to argue for an internal option, argue for it directly. Don’t pretend that it is a step towards another option. It won’t be. --MM
On Mon, Apr 13, 2015 at 02:26:02PM +0000, Martin Boyle wrote:
I’m actually quite happy with looking to include much of the IANA functions operator accountability mechanisms under an enhanced ICANN accountability regime. In my mind this has one crucial element in it – that the stakeholders are present in ICANN already and accountability is to them. Move it somewhere else and the stakeholders have another organisation to watch.
Just to make sure we're in agreement (I assume we are, but best to check), you mean the names-community stakeholders, and not all the IANA stakeholders, right? Assuming so, then this is a good point. The IETF has (and it appears the RIRs want) one mechanism for accountability, which is the ability to end the agreement and have someone else perform those functions. (Moreover, the RIRs of course do have a formal presence within ICANN, in the ASO.) But if the names community is not to get such an option (I don't know whether it could be negotiated in time), then it could be argued that it would be easier for the names community to provide oversight of one organization than of two. This does, however, have the negative effect that IANA itself remains entangled with the policy organization. It seems to me that some of those who are worried are mostly worried about that entanglement. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
On Mon, Apr 13, 2015 at 3:57 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Mon, Apr 13, 2015 at 02:26:02PM +0000, Martin Boyle wrote:
This does, however, have the negative effect that IANA itself remains entangled with the policy organization. It seems to me that some of those who are worried are mostly worried about that entanglement.
I like the fact that you used the word "remain" and its my understanding that those who are "worried" are not worried about the current status-quo(where things are already entangled) but are worried whether it will be possible to re-assign IANA if(when) required post-transition. The concern which seem to have been appropriately answered by the legal firm. That said, In the bid to further understand legal separation vis functional seperation, it may be useful to understand/know the type of separation that currently exist Regards
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
Yes, being sloppy again - I was just thinking about the names segment. Actually, the separation with policy works reasonably well at the moment, with many of the registries being involved on both policy and IANA sides. It just means that the IANA functions operator cannot invent policy on the fly, but has to go back to the policy source if the policy is not clear. Hope this helps Martin -----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: 13 April 2015 15:57 To: cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Question for Sidley On Mon, Apr 13, 2015 at 02:26:02PM +0000, Martin Boyle wrote:
I’m actually quite happy with looking to include much of the IANA functions operator accountability mechanisms under an enhanced ICANN accountability regime. In my mind this has one crucial element in it – that the stakeholders are present in ICANN already and accountability is to them. Move it somewhere else and the stakeholders have another organisation to watch.
Just to make sure we're in agreement (I assume we are, but best to check), you mean the names-community stakeholders, and not all the IANA stakeholders, right? Assuming so, then this is a good point. The IETF has (and it appears the RIRs want) one mechanism for accountability, which is the ability to end the agreement and have someone else perform those functions. (Moreover, the RIRs of course do have a formal presence within ICANN, in the ASO.) But if the names community is not to get such an option (I don't know whether it could be negotiated in time), then it could be argued that it would be easier for the names community to provide oversight of one organization than of two. This does, however, have the negative effect that IANA itself remains entangled with the policy organization. It seems to me that some of those who are worried are mostly worried about that entanglement. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
-----Original Message-----
I’m actually quite happy with looking to include much of the IANA functions operator accountability mechanisms under an enhanced ICANN accountability regime. In my mind this has one crucial element in it – that the stakeholders are present in ICANN already and accountability is to them. Move it somewhere else and the stakeholders have another organisation to watch.
Martin, This statement doesn't make any sense to me. IANA as an affiliate of ICANN doesn’t create a completely new organization to watch, it simply separates out the IANA governance issues from the policy governance issues. Your approach mixes them up. You have never adequately explained how you overcome the issues related to that - such as, for example, how IANA functions might become a hostage in policy disputes, or how the tiny status of IANA in the overall ICANN regime might make it difficult to focus on IANA performance.
Martin, You are making the common mistake of assuming away the institutional underpinnings of the current system and assuming that all will remain the same once those underpinnings change. Separation from policy is currently enforced by the IANA functions contract. The contract ends, then what enforces this separation? I am unconvinced by your arguments that all will be well with a purely internal solution. On its face, making IANA an affiliate, which has some immediate costs but establishes a clearer and more stable organizational arrangement for the long term, provides a stronger and more enforceable separation between policy and clerical implementation. I also don't see how the internal solution provides real separability. --MM
-----Original Message----- Actually, the separation with policy works reasonably well at the moment, with many of the registries being involved on both policy and IANA sides. It just means that the IANA functions operator cannot invent policy on the fly, but has to go back to the policy source if the policy is not clear.
Hope this helps
Martin
-----Original Message----- From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship- bounces@icann.org] On Behalf Of Andrew Sullivan Sent: 13 April 2015 15:57 To: cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Question for Sidley
On Mon, Apr 13, 2015 at 02:26:02PM +0000, Martin Boyle wrote:
I’m actually quite happy with looking to include much of the IANA
functions operator accountability mechanisms under an enhanced ICANN accountability regime. In my mind this has one crucial element in it – that the stakeholders are present in ICANN already and accountability is to them. Move it somewhere else and the stakeholders have another organisation to watch.
Just to make sure we're in agreement (I assume we are, but best to check), you mean the names-community stakeholders, and not all the IANA stakeholders, right?
Assuming so, then this is a good point. The IETF has (and it appears the RIRs want) one mechanism for accountability, which is the ability to end the agreement and have someone else perform those functions. (Moreover, the RIRs of course do have a formal presence within ICANN, in the ASO.) But if the names community is not to get such an option (I don't know whether it could be negotiated in time), then it could be argued that it would be easier for the names community to provide oversight of one organization than of two.
This does, however, have the negative effect that IANA itself remains entangled with the policy organization. It seems to me that some of those who are worried are mostly worried about that entanglement.
Best regards,
A
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participants (5)
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Andrew Sullivan -
Gomes, Chuck -
Martin Boyle -
Milton L Mueller -
Seun Ojedeji