Re: [CWG-Stewardship] Question for Sidley
Hi Milton, You mention ‘ a distinct governance body devoted to IANA performance and oversight issues’. Am I correct that your underlying assumption here is that the board of PTI will be a multistakeholder body and that they will oversee (and operate) the IANA function ? Best, Maarten From: Milton Mueller <mueller@syr.edu<mailto:mueller@syr.edu>> Date: Thursday 9 April 2015 20:48 To: Chuck Gomes <cgomes@verisign.com<mailto:cgomes@verisign.com>>, "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] 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. 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] 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.”
Maarten I think that is what the subsidiary PTI(legal separation) intends to achieve as indicated on S-A Statement. In summary, we are looking at post-transition scenario where the entity currently being over-sighted upon becomes the oversight on a new IANA operator/IANA manager called the PTI. Regards sent from Google nexus 4 kindly excuse brevity and typos. On 9 Apr 2015 21:33, "Maarten Simon" <maarten.simon@sidn.nl> wrote:
Hi Milton,
You mention ‘ a distinct governance body devoted to IANA performance and oversight issues’. Am I correct that your underlying assumption here is that the board of PTI will be a multistakeholder body and that they will oversee (and operate) the IANA function ?
Best,
Maarten
From: Milton Mueller <mueller@syr.edu> Date: Thursday 9 April 2015 20:48 To: Chuck Gomes <cgomes@verisign.com>, "cwg-stewardship@icann.org" < cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] 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.
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 <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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Hi Seun, But that is not what I remember to be the conclusion of the discussion in Istanbul. The idea was that the oversight role would be within ICANN and only the IANA operations would be separated. Otherwise I fail to see what the role of the contract between ICANN and the PTI would be and why we botter about a stakeholder community/member group that can overrule the ICANN board with regard to decisions on PRF. Maarten From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Thursday 9 April 2015 22:50 To: SIDN SIDN <maarten.simon@sidn.nl<mailto:maarten.simon@sidn.nl>> Cc: Chuck Gomes <cgomes@verisign.com<mailto:cgomes@verisign.com>>, "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>>, Milton Mueller <mueller@syr.edu<mailto:mueller@syr.edu>> Subject: Re: [CWG-Stewardship] Question for Sidley Maarten I think that is what the subsidiary PTI(legal separation) intends to achieve as indicated on S-A Statement. In summary, we are looking at post-transition scenario where the entity currently being over-sighted upon becomes the oversight on a new IANA operator/IANA manager called the PTI. Regards sent from Google nexus 4 kindly excuse brevity and typos. On 9 Apr 2015 21:33, "Maarten Simon" <maarten.simon@sidn.nl<mailto:maarten.simon@sidn.nl>> wrote: Hi Milton, You mention ‘ a distinct governance body devoted to IANA performance and oversight issues’. Am I correct that your underlying assumption here is that the board of PTI will be a multistakeholder body and that they will oversee (and operate) the IANA function ? Best, Maarten From: Milton Mueller <mueller@syr.edu<mailto:mueller@syr.edu>> Date: Thursday 9 April 2015 20:48 To: Chuck Gomes <cgomes@verisign.com<mailto:cgomes@verisign.com>>, "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] 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. 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] 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
Marteen: You are correct. In both internal solutions, legal separation ("affiliate") or functional separation, the stewardship stays in ICANN. So, if the PTI goes rogue, the "affiliate" contract is cancelled and move to another "affiliate" or an independent operator through an RFP process and a new contract; if the function goes rogue then it is more complex since the function needs to be disbanded and move to a newly to be created "affiliate" type of framework or other independent operator through an RFP process and a new contract. -ed On Thu, Apr 9, 2015 at 5:02 PM, Maarten Simon <maarten.simon@sidn.nl> wrote:
Hi Seun, But that is not what I remember to be the conclusion of the discussion in Istanbul. The idea was that the oversight role would be within ICANN and only the IANA operations would be separated. Otherwise I fail to see what the role of the contract between ICANN and the PTI would be and why we botter about a stakeholder community/member group that can overrule the ICANN board with regard to decisions on PRF. Maarten
From: Seun Ojedeji <seun.ojedeji@gmail.com> Date: Thursday 9 April 2015 22:50 To: SIDN SIDN <maarten.simon@sidn.nl> Cc: Chuck Gomes <cgomes@verisign.com>, "cwg-stewardship@icann.org" < cwg-stewardship@icann.org>, Milton Mueller <mueller@syr.edu>
Subject: Re: [CWG-Stewardship] Question for Sidley
Maarten I think that is what the subsidiary PTI(legal separation) intends to achieve as indicated on S-A Statement. In summary, we are looking at post-transition scenario where the entity currently being over-sighted upon becomes the oversight on a new IANA operator/IANA manager called the PTI.
Regards sent from Google nexus 4 kindly excuse brevity and typos. On 9 Apr 2015 21:33, "Maarten Simon" <maarten.simon@sidn.nl> wrote:
Hi Milton,
You mention ‘ a distinct governance body devoted to IANA performance and oversight issues’. Am I correct that your underlying assumption here is that the board of PTI will be a multistakeholder body and that they will oversee (and operate) the IANA function ?
Best,
Maarten
From: Milton Mueller <mueller@syr.edu> Date: Thursday 9 April 2015 20:48 To: Chuck Gomes <cgomes@verisign.com>, "cwg-stewardship@icann.org" < cwg-stewardship@icann.org> Subject: Re: [CWG-Stewardship] 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.
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 <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.”
_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org https://mm.icann.org/mailman/listinfo/cwg-stewardship
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You mention ' a distinct governance body devoted to IANA performance and oversight issues'. Am I correct that your underlying assumption here is that the board of PTI will be a multistakeholder body and that they will oversee (and operate) the IANA function ? Maarten - No. The Sidley-Austin discussion draft said the PTI board could be ICANN-controlled or "independent and multistakeholder." I think it's obvious that the PT-IANA board should be _independent_ of ICANN - that would be a requirement of proper separation of the policy making function from IANA. But I do not think the board needs to be "multistakeholder" if "multistakeholder" means that all the different stakeholder groups involved in policy making have to be equally represented on it. Ideally the board of a PTI would be small and very technical. It would be accountable to the broad multi-stakeholder community through the Periodic Review Function. The PRF obviates the need for a MSH board. In response to your last point, in my view the PTI board _oversees_ the IANA function; the operation of it, obviously, will be done by the staff. Milton L Mueller Laura J. and L. Douglas Meredith Professor Syracuse University School of Information Studies http://faculty.ischool.syr.edu/mueller/ Internet Governance Project http://internetgovernance.org<http://internetgovernance.org/>
Thank you Milton for the clarification and helpful because I have not looked at it that way. Thinking it through I wonder if non-executive board members are needed or only an executive board member. I further wonder who will appoint whatever board members are needed. Obviously this will not be ICANN as that is were you try to stay away from. Could be something like the new community committee that oversees the ICANN board upon a proposal by the CSC ? From: Milton Mueller <mueller@syr.edu<mailto:mueller@syr.edu>> Date: Thursday 9 April 2015 23:41 To: SIDN SIDN <maarten.simon@sidn.nl<mailto:maarten.simon@sidn.nl>>, Chuck Gomes <cgomes@verisign.com<mailto:cgomes@verisign.com>>, "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: RE: [CWG-Stewardship] Question for Sidley You mention ‘ a distinct governance body devoted to IANA performance and oversight issues’. Am I correct that your underlying assumption here is that the board of PTI will be a multistakeholder body and that they will oversee (and operate) the IANA function ? Maarten - No. The Sidley-Austin discussion draft said the PTI board could be ICANN-controlled or “independent and multistakeholder.” I think it’s obvious that the PT-IANA board should be _independent_ of ICANN – that would be a requirement of proper separation of the policy making function from IANA. But I do not think the board needs to be “multistakeholder” if “multistakeholder” means that all the different stakeholder groups involved in policy making have to be equally represented on it. Ideally the board of a PTI would be small and very technical. It would be accountable to the broad multi-stakeholder community through the Periodic Review Function. The PRF obviates the need for a MSH board. In response to your last point, in my view the PTI board _oversees_ the IANA function; the operation of it, obviously, will be done by the staff. Milton L Mueller Laura J. and L. Douglas Meredith Professor Syracuse University School of Information Studies http://faculty.ischool.syr.edu/mueller/ Internet Governance Project http://internetgovernance.org<http://internetgovernance.org/>
MM: .....But I do not think the board needs to be “multistakeholder” if “multistakeholder” means that all the different stakeholder groups involved in policy making have to be equally represented on it. Ideally the board of a PTI would be small and very technical SO: Based on above, what then is the role of CSC? and more importantly where does multistakeholder come in....Is PTI just about creating more seats within ICANN for a few privileged without accountability to the community? As S-A mentioned, who/how does PTI not become more unaccountable than the current ICANN board.(paraphrased) MM: In response to your last point, in my view the PTI board _*oversees*_ the IANA function; the operation of it, obviously, will be done by the staff SO: Which is practically the role currently carried out by ICANN(board) as it concerns IANA function operation. Overall maybe I am missing something in the puzzle Regards sent from Google nexus 4 kindly excuse brevity and typos. On 9 Apr 2015 22:42, "Milton L Mueller" <mueller@syr.edu> wrote:
You mention ‘ a distinct governance body devoted to IANA performance and oversight issues’. Am I correct that your underlying assumption here is that the board of PTI will be a multistakeholder body and that they will oversee (and operate) the IANA function ?
Maarten - No. The Sidley-Austin discussion draft said the PTI board could be ICANN-controlled or “independent and multistakeholder.”
I think it’s obvious that the PT-IANA board should be _*independent*_ of ICANN – that would be a requirement of proper separation of the policy making function from IANA. But I do not think the board needs to be “multistakeholder” if “multistakeholder” means that all the different stakeholder groups involved in policy making have to be equally represented on it. Ideally the board of a PTI would be small and very technical. It would be accountable to the broad multi-stakeholder community through the Periodic Review Function. The PRF obviates the need for a MSH board.
In response to your last point, in my view the PTI board _*oversees*_ the IANA function; the operation of it, obviously, will be done by the staff.
Milton L Mueller
Laura J. and L. Douglas Meredith Professor
Syracuse University School of Information Studies
http://faculty.ischool.syr.edu/mueller/
Internet Governance Project
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Hi Seun, The multistakeholder comes in at the level of the periodic review and finally at the level of the ‘Stakeholder Community/Member Group thing that should if necessary step in and direct/overrule the ICANN board with regard to as well the follow up of recommendations from a periodic review as well as with regard to escalation matters around IANA. Maarten From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Friday 10 April 2015 00:08 To: Milton Mueller <mueller@syr.edu<mailto:mueller@syr.edu>> Cc: SIDN SIDN <maarten.simon@sidn.nl<mailto:maarten.simon@sidn.nl>>, Chuck Gomes <cgomes@verisign.com<mailto:cgomes@verisign.com>>, "cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>" <cwg-stewardship@icann.org<mailto:cwg-stewardship@icann.org>> Subject: Re: [CWG-Stewardship] Question for Sidley MM: .....But I do not think the board needs to be “multistakeholder” if “multistakeholder” means that all the different stakeholder groups involved in policy making have to be equally represented on it. Ideally the board of a PTI would be small and very technical SO: Based on above, what then is the role of CSC? and more importantly where does multistakeholder come in....Is PTI just about creating more seats within ICANN for a few privileged without accountability to the community? As S-A mentioned, who/how does PTI not become more unaccountable than the current ICANN board.(paraphrased) MM: In response to your last point, in my view the PTI board _oversees_ the IANA function; the operation of it, obviously, will be done by the staff SO: Which is practically the role currently carried out by ICANN(board) as it concerns IANA function operation. Overall maybe I am missing something in the puzzle Regards sent from Google nexus 4 kindly excuse brevity and typos. On 9 Apr 2015 22:42, "Milton L Mueller" <mueller@syr.edu<mailto:mueller@syr.edu>> wrote: You mention ‘ a distinct governance body devoted to IANA performance and oversight issues’. Am I correct that your underlying assumption here is that the board of PTI will be a multistakeholder body and that they will oversee (and operate) the IANA function ? Maarten - No. The Sidley-Austin discussion draft said the PTI board could be ICANN-controlled or “independent and multistakeholder.” I think it’s obvious that the PT-IANA board should be _independent_ of ICANN – that would be a requirement of proper separation of the policy making function from IANA. But I do not think the board needs to be “multistakeholder” if “multistakeholder” means that all the different stakeholder groups involved in policy making have to be equally represented on it. Ideally the board of a PTI would be small and very technical. It would be accountable to the broad multi-stakeholder community through the Periodic Review Function. The PRF obviates the need for a MSH board. In response to your last point, in my view the PTI board _oversees_ the IANA function; the operation of it, obviously, will be done by the staff. Milton L Mueller Laura J. and L. Douglas Meredith Professor Syracuse University School of Information Studies http://faculty.ischool.syr.edu/mueller/ Internet Governance Project http://internetgovernance.org<http://internetgovernance.org/> _______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org<mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship
participants (4)
-
Eduardo Diaz -
Maarten Simon -
Milton L Mueller -
Seun Ojedeji