[CCWG-ACCT] Legal question
kdrazek at verisign.com
Wed Apr 22 11:55:07 UTC 2015
Chris, thanks very much for sharing and explaining your concerns. I agree with Jordan this is very helpful as we consider the best approach...one that delivers the desired powers in the simplest and most effective manner. Unlike other(s), I am optimistic we will succeed in doing so.
Sent from my iPhone
On Apr 22, 2015, at 12:09 AM, Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> wrote:
Hi all, hi Chris:
On 22 April 2015 at 11:07, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
As promised I set out in brief below some of the reasons why, in respect to the membership model and any model requiring the SOs and ACs to convert to legal entities, I have serious concerns and why I referred to significant sacrifices.
Nobody is proposing converting the SOs and ACs to anything - at all - anywhere.
The only proposal that I've seen from the lawyers is that if membership was the model chosen, legal personality would need to be created. The actors in the various SOs and ACs would, in exercising membership prerogatives, act through the unincorporated associations.
The lawyers have also been clear that even in a designator model, it's preferable to create legal personality along those lines.
I think it is really really really important for everyone involved in this effort to be very precise and clear about what we are discussing and what we aren't. So I am writing this so directly in order that if my understanding is wrong, it gets picked up pronto! :-)
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.
Indeed it may not. Being able to offer advice on public policy issues to the ICANN Board and to appoint a non-voting liaison member to the Board. I am looking forward to hearing their views on this (and many other questions).
However I see a serious incompatibility between the members’ powers and the standing of GAC advice to the Board. It’s not that GAC advice is or indeed should be invariably followed but currently where GAC advice is at odds with the position of others in the community the advice carries significant weight and there is a bylaw mandated process for rejecting the advice through a process which takes around 6 months. The change to a members based structure would mean that for certain issues the actions of members will trump GAC advice. So there is a significant shift in the carefully constructed balance of power. Now, many of us may think that such a shift is no bad thing but I wonder whether the governments of the world are going to agree?
I don't understand this. I have not seen any hint of anyone suggesting that a power that Members should have includes overriding decisions on matters of public policy, which is the advice that the GAC gives the Board and which the bylaws would continue to require it to give due deference to (perhaps with an adjustment about when that reconciliation process has to happen, should GAC change its operating principles).
If GAC advice on public policy matters led to changes in the bylaws, or the inclusion by the Board of business or strategic plans or budgets, then the new powers might have an impact. But all that would require the Board and the GAC to do is to persuade the broader ICANN system, or at least some of it, that their ideas are ones that should be pursued.
Does that feel like a fundamental issue to you? It doesn't to me.
When we set up the ccNSO and when we did the structural review of it some time thereafter there was considerable discussion about how it could be structured precisely to avoid the need for ccTLDs to join anything. There was even significant concern about having to fill out a form and whether that implied the existence of some organisation. The concerns included joining something in the jurisdiction of the US and whether that would make a ccTLD manager in any way subject to US law, the possibility of being sued in the US because the manager would be deemed to have a presence there, how such a structure would be funded (especially if it was sued), whether there was any liability on ‘officers’ of the entity and so on. I believe that many of these concerns will still exist for many ccTLDs.
They may or may not. But in that fifteen-years-ago debate, were there any facts on the table about those questions? Or was it all a bit of a mess on many fronts? Because ICANN in 2015 is, better or worse, a very different beast to ICANN in ~ 2000.
Perhaps more importantly, exercising some rights through an unincorporated association would remain a choice for every ICANN participant. Nobody would be forced to be involved. It isn't like a "Join ICANN and have no say" - all the current structures for the "business of the business" would remain in place.
>From the legends I have heard about this early phase in ICANN's history, the fundamental concern was of a power-grab on the corporation's part. Since these reforms make such a power-grab harder (and let's remember that the end of the NTIA contract makes it easier...), I'd expect ccTLDs and others to look at them with quite some interest.
Further, quite a number of ccTLD managers are departments of the relevant government or quasi-government bodies. Not everyone runs their ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged to enjoy. I consider it highly unlikely that sovereign governments will permit a government department to join an association in the US (or any other country for that matter).
They won't have to, to do what they do in ICANN today.
The suggestion is they might have to if they want to take part in exercising the accountability powers set out in our report that's going for public comment.
That said, there's a bit of an objective legal question here - which is whether the decisions of these uninc associations can be forced to take account of the views expressed in the ICANN bodies they shadow in making their decisions. If they can (which I would analogise to the ccNSO taking on board the views of non-member ccTLDs - and so I assume it is possible), much of this debate becomes moot.
Finally -- I do think this is a really useful and constructive discussion. As someone who is warm to the member approach, but who sees huge benefits if we can manage a "no structural change" outcome, this is just the convo we need to have.
I don’t know the answer to this but it strikes me that the structure may also be problematic for At Large community as opposed to ALAC. On that one over the ALAC folks to comment.
There’s more but I'm rushing for my flight now. Hope this gives you a flavour.
On 21 Apr 2015, at 20:46 , Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
Thanks for the below. You ask a valid question and Kavouss has sent me an email asking the same. I will respond in detail in the next 7 hours or so.
CEO - auDA
On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek at verisign.com<mailto:kdrazek at verisign.com>> wrote:
Thanks Chris, no apologies necessary...this is exactly the kind of dialogue needed to advance our work.
Can you be more explicit about the "significant number of sacrifices that would need to be made in a membership scenario" that ccTLDs face? Particularly if any are unique to ccTLDs?
Sacrifices may be needed (including from the Board) if we are to accomplish the community's broader goal of ensuring the ICANN Board and Staff are truly accountable to the ICANN community for the next decade. As such, it would be good to know, as early as possible, what those sacrifices might be.
In simple terms, I agree that determining what can and cannot be accomplished within the existing structure is a worthwhile exercise and will help to inform the community.
Based on our work and the relevant independent legal analysis to date, it appears to me that the current construct has significant gaps and shortcomings and won't deliver on our goals, but I support seeking further advice on the topic from our independent legal advisors.
Thanks and regards,
On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
I apologise for pinging back and forth on this but I hope the list will appreciate that it as an indication of how important auDA believes this point is.
As I said on the CCWG call last week, I have serious concerns about the viability of the lawyers' recommended structural changes (at least from a cc point of view) and want to be crystal clear about what we can do or cannot do within the current structure.
For a ccTLD there are a significant number of sacrifices that would need to be made in a membership scenario and I don't believe the cc community can decide whether those sacrifices are worth making unless we can weigh them against what we would be able to achieve using the current structure.
I think that is essential that our output to the community contains a clear explanation of what the status quo can achieve. If it does not then IMO it is impossible to judge the other scenarios.
I appreciate your second para and, as a lawyer, I know that time for a response is required. I also appreciate the time constraints under which we are operating. But we will lose more time if the result of our document is a series of questions about whether there really is a need to make the significant changes being recommended.
In simple terms 'not nearly enough' is not an acceptable response. How can I know that "it" is not nearly enough unless I know what "it" is?
CEO - auDA
On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek at verisign.com<mailto:kdrazek at verisign.com>> wrote:
I believe the answer to your question regarding the "no change scenario" and "what the current configuration can achieve" is, "Not nearly enough."
That said, I think it's a reasonable question and it should be referred to the CCWG's lawyers and they should be permitted reasonable time to consider and respond.
Sent from my iPhone
On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
Thanks. At the risk of repeating myself, whilst I understand what you are saying, it is precisely the no change scenario that I am seeking clarity on. I accept that the current configuration may not be "a very good vehicle for many of the enhanced powers" but I want clarity on what the current configuration CAN achieve. I don't believe we have that yet.
CEO - auDA
On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
The simple answer is that the SOACs as currently configured are not a very good vehicle for many of the enhanced powers we seek. Once you make them into members and give them legal personhood everything else becomes much easier.
However, you assumed no change to the SOACs, which made the answers much harder.
On Tuesday, April 21, 2015, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
With respect, I think we are overcomplicating the issue. I simply want to gain a base line for the discussion about any changes necessary to achieve what we want. We agreed on jurisdiction that if we can get acceptable escalations and remedies without changing jurisdiction then we should leave well alone for now, I think we should apply the same principle here. I am clear what the lawyers recommend we do BUT I am not clear about what we can do or what compromises we need to make if we were to maintain the current structure. I think that is a key part of our deliberations.
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