Question re fiduciary duties and separation
Hi there I have a question which participants may recall the answer to: Is the ICANN board allowed to agree to a separation of the IANA functions operator, given its fiduciary duties to the corporation? Relatedly: Was this question explicitly addressed by the legal advisors to the CWG - and if so, where can I find that advice? I ask because I want to test the feasibility of the separation model in the ICG proposal. Many thanks for any assistance you can offer. cheers Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
I am not able to assist. CW On 31 Aug 2015, at 21:08, Jordan Carter <jordan@internetnz.net.nz> wrote:
Hi there
I have a question which participants may recall the answer to:
Is the ICANN board allowed to agree to a separation of the IANA functions operator, given its fiduciary duties to the corporation?
Relatedly:
Was this question explicitly addressed by the legal advisors to the CWG - and if so, where can I find that advice?
I ask because I want to test the feasibility of the separation model in the ICG proposal.
Many thanks for any assistance you can offer.
cheers Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
A better world through a better Internet
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On Tue, Sep 01, 2015 at 07:08:19AM +1200, Jordan Carter wrote:
Is the ICANN board allowed to agree to a separation of the IANA functions operator, given its fiduciary duties to the corporation?
It'd be hard not to, given that it has had that agreement with the IETF for many years. If the answer is, "No," we're going to have a very rocky future ahead. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Andrew, all: On 1 September 2015 at 09:33, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Tue, Sep 01, 2015 at 07:08:19AM +1200, Jordan Carter wrote:
Is the ICANN board allowed to agree to a separation of the IANA functions operator, given its fiduciary duties to the corporation?
It'd be hard not to, given that it has had that agreement with the IETF for many years. If the answer is, "No," we're going to have a very rocky future ahead.
On the face of it I don't think there is an issue with numbers and protocols. Those communities have agreements with ICANN and can I suppose appoint alternative operators regardless of what ICANN thinks. That is how the principle of separability is upheld in their proposals. The question is still interesting as it might guide ICANN's response to a decision by such a community to move the operator - e.g. would it feel obliged to oppose such a change. The complexity, as usual, arises with names :-( I would be grateful for knowledge from CWG participants on the question, in respect of the names process, but also whether it was considered for the others. I keep coming back to the status quo. At the moment, the USG can reassign the functions. We need to be careful that, given there is a principle of separability, it isn't rendered inoperable by the CWG's proposal through this matter. best Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
Jordan, I don't think there is any reason that separability would be rendered inoperable by the CWG's proposal. Quite the opposite. We have been very focused on separability, and it is one of the key principles that underpin our entire proposal. We have developed a community-driven separation process for that purpose, culminating in the SCWG. I think the issue of the ICANN Board's duties, including fiduciary duty, is more nuanced than you imply (or than Jones Day may sometimes appear to imply), and it includes duties relating to the public interest, among other things. We have received advice from Sidley Austin on this broader issue. I don't have it at my fingertips, but it should be available on the CWG wiki pages, where there should be a page with documents, including documents from Sidley. Given the Board's duties, there did not seem to be any question that the Board could agree to relinquish the IANA operator duties relating to names. I expect this would be further clarified in the Bylaws relating to the SCWG and to separation generally. Greg On Mon, Aug 31, 2015 at 6:31 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Andrew, all:
On 1 September 2015 at 09:33, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
On Tue, Sep 01, 2015 at 07:08:19AM +1200, Jordan Carter wrote:
Is the ICANN board allowed to agree to a separation of the IANA functions operator, given its fiduciary duties to the corporation?
It'd be hard not to, given that it has had that agreement with the IETF for many years. If the answer is, "No," we're going to have a very rocky future ahead.
On the face of it I don't think there is an issue with numbers and protocols. Those communities have agreements with ICANN and can I suppose appoint alternative operators regardless of what ICANN thinks. That is how the principle of separability is upheld in their proposals.
The question is still interesting as it might guide ICANN's response to a decision by such a community to move the operator - e.g. would it feel obliged to oppose such a change.
The complexity, as usual, arises with names :-(
I would be grateful for knowledge from CWG participants on the question, in respect of the names process, but also whether it was considered for the others.
I keep coming back to the status quo. At the moment, the USG can reassign the functions. We need to be careful that, given there is a principle of separability, it isn't rendered inoperable by the CWG's proposal through this matter.
best Jordan
-- Jordan Carter
Chief Executive *InternetNZ*
+64-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
*A better world through a better Internet *
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From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Jordan Carter I keep coming back to the status quo. At the moment, the USG can reassign the functions. We need to be careful that, given there is a principle of separability, it isn't rendered inoperable by the CWG's proposal through this matter. Frankly, I think the current proposal comes very close to rendering separability inoperable. While separation is theoretically possible, it suffers from the absence of the basic notion of competitive bidding. As one journalist (Kieren McCarthy) put it, “There are no less than 10 steps that have to go through seven different committees. Two of those committees have to be specially created and the process requires super majority votes from the two main supporting organizations not once but twice.” The process is essentially designed to avoid change and keep it in PTI/ICANN’s hands in all but the most exceptional circumstances – and in most of the exceptional circumstances one could imagine a process this slow and complex would be practically useless. The basic idea of a renewable contract has been buried by a mound of steaming….committees and reviews. The CWG lost sight of the basic question they should have been answering, which is: “how can we keep the contractor honest and the process of RZF editing maximally efficient by making the possibility of the IFO’s replacement real?” My two cents --MM
Hi, Look at how long it took for the NTIA to have a rebid. And there is nothing in the separation function that prohibits doing a bid at a point in the process. In fact it is quite specific about a bid and the possibility the the current PTO could bid again. My hope though, is that just the act of getting the machinery cranked up, would be enough of a threat to cause ICANN to try to fix any problem. But if it didn't, I predict it would take about as long as it took the NTIA, with its call for comments on how to do it &c. We also have to take into account the reactions and actions from Numbers and Protocols at the time of any separation preparation - that would take some time. I think the reference solution strikes the balance between changing over too easily and not being able to change over at all. avri On 31-Aug-15 22:17, Mueller, Milton L wrote:
*From:*cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] *On Behalf Of *Jordan Carter
I keep coming back to the status quo. At the moment, the USG can reassign the functions. We need to be careful that, given there is a principle of separability, it isn't rendered inoperable by the CWG's proposal through this matter.
Frankly, I think the current proposal comes very close to rendering separability inoperable. While separation is theoretically possible, it suffers from the absence of the basic notion of competitive bidding. As one journalist (Kieren McCarthy) put it, “There are no less than 10 steps that have to go through seven different committees. Two of those committees have to be specially created and the process requires super majority votes from the two main supporting organizations not once but twice.” The process is essentially designed to avoid change and keep it in PTI/ICANN’s hands in all but the most exceptional circumstances – and in most of the exceptional circumstances one could imagine a process this slow and complex would be practically useless. The basic idea of a renewable contract has been buried by a mound of steaming….committees and reviews. The CWG lost sight of the basic question they should have been answering, which is: “how can we keep the contractor honest and the process of RZF editing maximally efficient by making the possibility of the IFO’s replacement real?”
My two cents
--MM
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Well, Avri, precisely. As I pointed out some time ago, should matters ever reach such a pass that separation would be invoked, then the machinery proposed would not be fit for purpose. Other measures, external to ICANN, IANA and this Community would have intervened long before. Indeed, if all that CWG has achieved, in this respect, is to create some kind of moral hazard hanging over ICANN, then the last eighteen months work has been disproportionate. CW On 01 Sep 2015, at 18:45, Avri Doria <avri@acm.org> wrote:
Hi,
Look at how long it took for the NTIA to have a rebid. And there is nothing in the separation function that prohibits doing a bid at a point in the process. In fact it is quite specific about a bid and the possibility the the current PTO could bid again.
My hope though, is that just the act of getting the machinery cranked up, would be enough of a threat to cause ICANN to try to fix any problem. But if it didn't, I predict it would take about as long as it took the NTIA, with its call for comments on how to do it &c. We also have to take into account the reactions and actions from Numbers and Protocols at the time of any separation preparation - that would take some time. I think the reference solution strikes the balance between changing over too easily and not being able to change over at all.
avri
On 31-Aug-15 22:17, Mueller, Milton L wrote:
*From:*cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] *On Behalf Of *Jordan Carter
I keep coming back to the status quo. At the moment, the USG can reassign the functions. We need to be careful that, given there is a principle of separability, it isn't rendered inoperable by the CWG's proposal through this matter.
Frankly, I think the current proposal comes very close to rendering separability inoperable. While separation is theoretically possible, it suffers from the absence of the basic notion of competitive bidding. As one journalist (Kieren McCarthy) put it, “There are no less than 10 steps that have to go through seven different committees. Two of those committees have to be specially created and the process requires super majority votes from the two main supporting organizations not once but twice.” The process is essentially designed to avoid change and keep it in PTI/ICANN’s hands in all but the most exceptional circumstances – and in most of the exceptional circumstances one could imagine a process this slow and complex would be practically useless. The basic idea of a renewable contract has been buried by a mound of steaming….committees and reviews. The CWG lost sight of the basic question they should have been answering, which is: “how can we keep the contractor honest and the process of RZF editing maximally efficient by making the possibility of the IFO’s replacement real?”
My two cents
--MM
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Thanks all, for these comments. My question was on a very narrow point, around whether the ICANN Board would in fact be *able* to authorise a transfer as part of the escalation process towards a separation. I've seen Greg's reply as the nearest to a direct answer on that, which confirms no specific advice on the point but argues it will be possible. If that is where it stands, then I can consider myself informed - concerned, but informed. thanks, Jordan On 2 September 2015 at 08:00, Christopher Wilkinson < lists@christopherwilkinson.eu> wrote:
Well, Avri, precisely. As I pointed out some time ago, should matters ever reach such a pass that separation would be invoked, then the machinery proposed would not be fit for purpose. Other measures, external to ICANN, IANA and this Community would have intervened long before.
Indeed, if all that CWG has achieved, in this respect, is to create some kind of moral hazard hanging over ICANN, then the last eighteen months work has been disproportionate.
CW
On 01 Sep 2015, at 18:45, Avri Doria <avri@acm.org> wrote:
Hi,
Look at how long it took for the NTIA to have a rebid. And there is nothing in the separation function that prohibits doing a bid at a point in the process. In fact it is quite specific about a bid and the possibility the the current PTO could bid again.
My hope though, is that just the act of getting the machinery cranked up, would be enough of a threat to cause ICANN to try to fix any problem. But if it didn't, I predict it would take about as long as it took the NTIA, with its call for comments on how to do it &c. We also have to take into account the reactions and actions from Numbers and Protocols at the time of any separation preparation - that would take some time. I think the reference solution strikes the balance between changing over too easily and not being able to change over at all.
avri
On 31-Aug-15 22:17, Mueller, Milton L wrote:
*From:*cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] *On Behalf Of *Jordan Carter
I keep coming back to the status quo. At the moment, the USG can reassign the functions. We need to be careful that, given there is a principle of separability, it isn't rendered inoperable by the CWG's proposal through this matter.
Frankly, I think the current proposal comes very close to rendering separability inoperable. While separation is theoretically possible, it suffers from the absence of the basic notion of competitive bidding. As one journalist (Kieren McCarthy) put it, “There are no less than 10 steps that have to go through seven different committees. Two of those committees have to be specially created and the process requires super majority votes from the two main supporting organizations not once but twice.” The process is essentially designed to avoid change and keep it in PTI/ICANN’s hands in all but the most exceptional circumstances – and in most of the exceptional circumstances one could imagine a process this slow and complex would be practically useless. The basic idea of a renewable contract has been buried by a mound of steaming….committees and reviews. The CWG lost sight of the basic question they should have been answering, which is: “how can we keep the contractor honest and the process of RZF editing maximally efficient by making the possibility of the IFO’s replacement real?”
My two cents
--MM
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-- Jordan Carter Chief Executive *InternetNZ* +64-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
Jordan, I understood your question and my personal interpretation is that this should be covered in the bylaws work. Section 8 of the Sidley memo on bylaws specifically deals with the separation process. Therefore, if (eventual) separation is contemplated by the CWG’s work, diligent legal work should include provision (via bylaw modification or otherwise) for the ICANN board to authorise such (eventual) separation. Good question. Jonathan From: Jordan Carter [mailto:jordan@internetnz.net.nz] Sent: 02 September 2015 06:45 To: Christopher Wilkinson <lists@christopherwilkinson.eu> Cc: Avri Doria <avri@acm.org>; cwg-stewardship@icann.org Subject: Re: [CWG-Stewardship] Question re fiduciary duties and separation Thanks all, for these comments. My question was on a very narrow point, around whether the ICANN Board would in fact be *able* to authorise a transfer as part of the escalation process towards a separation. I've seen Greg's reply as the nearest to a direct answer on that, which confirms no specific advice on the point but argues it will be possible. If that is where it stands, then I can consider myself informed - concerned, but informed. thanks, Jordan On 2 September 2015 at 08:00, Christopher Wilkinson <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> > wrote: Well, Avri, precisely. As I pointed out some time ago, should matters ever reach such a pass that separation would be invoked, then the machinery proposed would not be fit for purpose. Other measures, external to ICANN, IANA and this Community would have intervened long before. Indeed, if all that CWG has achieved, in this respect, is to create some kind of moral hazard hanging over ICANN, then the last eighteen months work has been disproportionate. CW On 01 Sep 2015, at 18:45, Avri Doria <avri@acm.org <mailto:avri@acm.org> > wrote:
Hi,
Look at how long it took for the NTIA to have a rebid. And there is nothing in the separation function that prohibits doing a bid at a point in the process. In fact it is quite specific about a bid and the possibility the the current PTO could bid again.
My hope though, is that just the act of getting the machinery cranked up, would be enough of a threat to cause ICANN to try to fix any problem. But if it didn't, I predict it would take about as long as it took the NTIA, with its call for comments on how to do it &c. We also have to take into account the reactions and actions from Numbers and Protocols at the time of any separation preparation - that would take some time. I think the reference solution strikes the balance between changing over too easily and not being able to change over at all.
avri
On 31-Aug-15 22:17, Mueller, Milton L wrote:
*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 *Jordan Carter
I keep coming back to the status quo. At the moment, the USG can reassign the functions. We need to be careful that, given there is a principle of separability, it isn't rendered inoperable by the CWG's proposal through this matter.
Frankly, I think the current proposal comes very close to rendering separability inoperable. While separation is theoretically possible, it suffers from the absence of the basic notion of competitive bidding. As one journalist (Kieren McCarthy) put it, “There are no less than 10 steps that have to go through seven different committees. Two of those committees have to be specially created and the process requires super majority votes from the two main supporting organizations not once but twice.” The process is essentially designed to avoid change and keep it in PTI/ICANN’s hands in all but the most exceptional circumstances – and in most of the exceptional circumstances one could imagine a process this slow and complex would be practically useless. The basic idea of a renewable contract has been buried by a mound of steaming….committees and reviews. The CWG lost sight of the basic question they should have been answering, which is: “how can we keep the contractor honest and the process of RZF editing maximally efficient by making the possibility of the IFO’s replacement real?”
My two cents
--MM
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_______________________________________________ CWG-Stewardship mailing list CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> https://mm.icann.org/mailman/listinfo/cwg-stewardship -- Jordan Carter Chief Executive InternetNZ +64-495-2118 (office) | +64-21-442-649 (mob) Email: <mailto:jordan@internetnz.net.nz> jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz> A better world through a better Internet
Hi, Isn't this one of the times when the ability to remove Board members becomes a practical solution: when their view of the fiduciary interests runs in conflict to the the community's, if indeed it does. I thought that is the whole reason for the mechanisms for escalation CCWG is creating. And that is what makes those mechanisms, part of WS1 and necessary for the transition. avri On 02-Sep-15 07:44, Jordan Carter wrote:
Thanks all, for these comments.
My question was on a very narrow point, around whether the ICANN Board would in fact be *able* to authorise a transfer as part of the escalation process towards a separation.
I've seen Greg's reply as the nearest to a direct answer on that, which confirms no specific advice on the point but argues it will be possible.
If that is where it stands, then I can consider myself informed - concerned, but informed.
thanks, Jordan
On 2 September 2015 at 08:00, Christopher Wilkinson <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> wrote:
Well, Avri, precisely. As I pointed out some time ago, should matters ever reach such a pass that separation would be invoked, then the machinery proposed would not be fit for purpose. Other measures, external to ICANN, IANA and this Community would have intervened long before.
Indeed, if all that CWG has achieved, in this respect, is to create some kind of moral hazard hanging over ICANN, then the last eighteen months work has been disproportionate.
CW
On 01 Sep 2015, at 18:45, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
> Hi, > > Look at how long it took for the NTIA to have a rebid. And there is > nothing in the separation function that prohibits doing a bid at a point > in the process. In fact it is quite specific about a bid and the > possibility the the current PTO could bid again. > > My hope though, is that just the act of getting the machinery cranked > up, would be enough of a threat to cause ICANN to try to fix any > problem. But if it didn't, I predict it would take about as long as it > took the NTIA, with its call for comments on how to do it &c. We also > have to take into account the reactions and actions from Numbers and > Protocols at the time of any separation preparation - that would take > some time. I think the reference solution strikes the balance between > changing over too easily and not being able to change over at all. > > avri > > > > > On 31-Aug-15 22:17, Mueller, Milton L wrote: >> >> >> >> >> >> *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 *Jordan Carter >> >> I keep coming back to the status quo. At the moment, the USG can >> reassign the functions. We need to be careful that, given there is a >> principle of separability, it isn't rendered inoperable by the CWG's >> proposal through this matter. >> >> >> >> Frankly, I think the current proposal comes very close to rendering >> separability inoperable. While separation is theoretically possible, >> it suffers from the absence of the basic notion of competitive >> bidding. As one journalist (Kieren McCarthy) put it, “There are no >> less than 10 steps that have to go through seven different committees. >> Two of those committees have to be specially created and the process >> requires super majority votes from the two main supporting >> organizations not once but twice.” The process is essentially >> designed to avoid change and keep it in PTI/ICANN’s hands in all but >> the most exceptional circumstances – and in most of the exceptional >> circumstances one could imagine a process this slow and complex would >> be practically useless. The basic idea of a renewable contract has >> been buried by a mound of steaming….committees and reviews. The CWG >> lost sight of the basic question they should have been answering, >> which is: “how can we keep the contractor honest and the process of >> RZF editing maximally efficient by making the possibility of the IFO’s >> replacement real?” >> >> >> >> My two cents >> >> --MM >> >> >> >> >> >> _______________________________________________ >> CWG-Stewardship mailing list >> CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> >> https://mm.icann.org/mailman/listinfo/cwg-stewardship > > > --- > This email has been checked for viruses by Avast antivirus software. > https://www.avast.com/antivirus > > _______________________________________________ > CWG-Stewardship mailing list > CWG-Stewardship@icann.org <mailto:CWG-Stewardship@icann.org> > https://mm.icann.org/mailman/listinfo/cwg-stewardship
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Chief Executive *InternetNZ*
+64-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz>
/A better world through a better Internet /
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participants (7)
-
Andrew Sullivan -
Avri Doria -
Christopher Wilkinson -
Greg Shatan -
Jonathan Robinson -
Jordan Carter -
Mueller, Milton L