[CCWG-ACCT] Legal question

Greg Shatan gregshatanipc at gmail.com
Wed Apr 22 06:05:27 UTC 2015

I'll take Avri's point one step further: the GAC is essentially a "red
herring" (a misleading or distracting item) when it comes to the membership
model.  The GAC currently does not (s)elect a director, so GAC does not
need to be a member for that purpose.  Since the GAC doesn't have a
director in the first place, the GAC would not need the power to remove a
director, and they would not be involved in "spilling" the board either.
GAC member status would only be an issue if they demanded participation in
rejecting/approving the budget and strategic plan.

Furthermore, saying that "The current recommended model does not provide
any viable solution for dealing with the GAC" begs the question (or several
questions): have we attempted to fashion a viable solution for dealing with
the GAC as a member (assuming for the sake of argument we would need to)?
Have we asked counsel for a viable solution for dealing with the GAC as a
member?  I believe the answer to both is "no."  As counsel has advised us,
"the devil is in the details," and I think these are details (albeit
possibly important ones) we just haven't reached yet.

Also, since counsel has advised that a designator must also be a legal
person (e.g., an unincorporated association), doesn't the designator model
have the same problem in this regard as the member model?  I believe the
answer to this is "yes."

As for the ccNSO issue, I think my two questions above (and answers) apply
as well.  With regard to the questions Chris has raised (or recalled) those
all seem answerable as well.  We should explore solutions before we decide
there aren't any.

As for Avri's points, I am not sure I understand what the "new
accountability issues and capture scenarios of the membership model" are.
I can't think of any that don't exist in the current situation (but it's
late, so maybe I'm not being creative).  (And, if these issues and
scenarios involve the unincorporated association status, then these are
also problems of the designator model.)  The SOAC unincorporated
associations would be new structures from a technical legal point of view,
but very few practical changes would need to take place, as far as I know
(indeed, some if not most of the SOACs may already be de facto
unincorporated associations anyway).

On the issue of the Board and its SIC (Structural Improvements Committee)
being "the effective oversight for the SOAC (except the GAC)," I think we
need to get more concrete about what that means.  I'm trying to think of
any meaningful oversight by the Board and SIC over the GNSO, CSG or IPC in
the time I've been involved, and I can't think of any instances.  If there
is some meaningful oversight, it would be peculiar for the Board to have
oversight over members, since the idea of members is the other way around
(which is of course why we've been talking about members in the first place
-- in order to exercise effective oversight over the Board).  If you take
this point to its logical conclusion, how could we ever use structures that
are under Board oversight to provide oversight for the Board?  As for
proving "accountability and non-capture" (putting aside issues in proving a
negative) -- how do we do it today?  Let's start working from there
(wherever there is).

With regard to ATRT issues, I don't think there needs to be any functional
change.  At most, the bylaws might need to be tweaked and/or the SOACs may
need to agree to be subject to ATRT on the same terms.  But the SOACs will
still be performing the same role and will still be part of the ICANN

I don't deny that we need to drill down on these questions.  But there's no
reason to believe we are going to hit insurmountable obstacles when we do


On Wed, Apr 22, 2015 at 12:51 AM, Avri Doria <avri at acm.org> wrote:

>  Hi,
> While not arguing for the member model, as I have my own concerns with the
> model ...
> On 21-Apr-15 19:07, Chris Disspain wrote:
> The current recommended model does not provide any viable solution for
> dealing with the GAC. It seems obvious to me that the governments involved
> in the GAC are not going to agree to form an unincorporated association
> under Californian law. If I'm right then presumably the GAC would remain as
> an advisory committee and would not be able to have a vote in any of the
> escalation mechanisms. That may be fine as the GAC may not want to have a
> vote anyway.
> The GAC currently does not have a voting Board Director.  I have
> understood that the reason is that they don't want one.  Becoming a member
> is largely about (s)electing a Director.  While there are other member
> oversight powers, the GAC has a special Bylaw status that gives it a degree
> of ICANN oversight and takes it out of the standard AC model; no other SOAC
> has the degree of control over the Board that the GAC does.  I see no
> reason why difficulties they might have deciding to become members would be
> a gating consideration on picking this model.  I think that one of the
> points about their special advice status is that they don't need to become
> ICANN members to influence the Board.
> I have a viewpoint on the ccNSO and its ability to adequately represent
> the interests of all ccTLDs, but figure the better part of valor requires
> me to remain silent on that.
> On the other hand,
> As mentioned above, I have concerns with a member model as a WS1 solution,
> especially its implementation in the required time frame. I also see the
> new accountability issues and capture scenarios of the membership model  as
> something that would need to explored and documented; all of the SOAC legal
> entitieis would be new structures and we would need to provide the details
> - WS1 is part of the IANA submission.  These days, the Board and its SIC
> (Structural Improvements Committee) are the effective oversight for the
> SOAC (except the GAC).  Would that still be the case when they were
> independent legal entities?  If not, how would they prove accountability
> and non-capture to their respective communities or to the other members?  I
> believe it could be done, but it is not a quick job.  Or does the Board and
> its SIC remain responsible as today - if so, how would that work?
> Another question I have is on the member model as related to the ATRT.
> The ATRT can make recommendations regarding any part of ICANN, including
> the SOAC structure, both internal and in their relationship to each other.
> As part of ATRT2, we made recommendations related to GNSO policy
> development process, ATRT1 made recommendations about the relationship
> between the Board and the GAC. Would that still be in scope when to the
> SOAC became independent legal entities?  Would we need to modify the AOC
> derivative bylaws to deal with that?
> The more I think about the member model, the more questions I come up
> with.
> Do we absolutely need this to achieve what we need for WS1?
> Or is it the 'Tesla' we wish we had.
> avri
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