[CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

Fri Jun 19 13:40:01 UTC 2015

sent from Google nexus 4
kindly excuse brevity and typos.
On 19 Jun 2015 14:11, "Drazek, Keith" <kdrazek at verisign.com> wrote:
>
> Hi Roelof,
>
Hi,

While I am not Roelof, I like your approach in summarizing differences and
I like to give my personal believe as well. Kindly find online:

>
>
> You believe that a future Board would never reject the community’s will.
I believe it’s a possibility we need to protect against.
>
>
SO: I believe board could indeed reject the community's will so long as the
reasons are justified because the community is not always 100%
accurate/correct as well. Overall there is no always right and always wrong
on both sides.

>
> You’re willing to rely on trust in a future, unknown Board. I believe we
need to ensure future communities have the tools to hold the Board
accountable.
>
>
SO: Unknown would perhaps become relevant if you refer to nomcom appointed
board members and even that is limited because of the intense process
involved in the selection. That said, I share in your believe about holding
the board accountable.

>
> You’re willing to leave ultimate authority with the Board. I believe
ultimate authority must be with ICANN’s global multi-stakeholder community
through its current and future SO-AC structures.
>
>
SO: As an organisation, I believe ultimate authority should always be with
the board otherwise the community won't have a basis to hold them
accountable.

>
> In the spirit of consensus-building, I hope we’re able to find a way to
bridge these gaps. I believe we can.
>
>
SO:
Yes I do as well.

Regards

>
> Best,
>
> Keith
>
>
>
> From: Roelof Meijer [mailto:Roelof.Meijer at sidn.nl]
> Sent: Friday, June 19, 2015 9:57 AM
> To: Alan Greenberg; Drazek, Keith; Chris Disspain
> Cc: accountability-cross-community at icann.org
>
> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart,
Voluntary Model
>
>
>
> Keith,
>
>
>
> I would welcome a reaction to my email?
>
>
>
> Cheers,
>
>
>
> Roelof
>
>
>
> From: Alan Greenberg <alan.greenberg at mcgill.ca>
> Date: dinsdag 16 juni 2015 04:09
> To: Roelof Meijer <roelof.meijer at sidn.nl>, Keith Drazek <
kdrazek at verisign.com>, Chris Disspain <ceo at auda.org.au>
> Cc: "accountability-cross-community at icann.org" <
accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart,
Voluntary Model
>
>
>
> This tends to pretty well correlate with the position that most in the
ALAC have supported.
>
> Alan
>
> At 15/06/2015 03:03 AM, Roelof Meijer wrote:
>
>
> Keith,
>
> I wonder if with "If a future ICANN Board were to jump the tracks, the
community will no longer have the NTIA backstop. Without legal
enforceability, the community would have to trust future ICANN Boards and
trust future California Attorney Generals. “ you’re not oversimplifying or
over-contrasting between the  situation with legal enforceability and
without.
>
> I think that in a situation where the board “jump the track”, the
community ultimately goes through its process to spill the board and the
board refuses to go, that board would be paralyzed in all ways, face shame
and defamation individually on a global scale and would ruin their personal
careers completely.
> They would dimply not do that.
>
> Best,
>
> Roelof
>
> From: <Drazek>, Keith Drazek <kdrazek at verisign.com>
> Date: zondag 14 juni 2015 03:52
> To: Chris Disspain <ceo at auda.org.au>
> Cc: " accountability-cross-community at icann.org" <
accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart,
Voluntary Model
>
> Chris,
>
> NTIA's current enforcement powers are indirect but very real. Through its
existing ability to re-bid the IANA Functions contract, NTIA ensures that
ICANN and its Board of Directors remain true to its bylaws. That unique
role is set to change.
>
> If a future ICANN Board were to jump the tracks, the community will no
longer have the NTIA backstop. Without legal enforceability, the community
would have to trust future ICANN Boards and trust future California
Attorney Generals. Why shouldn't we instead trust the global
multi-stakeholder community itself?
>
> If a future ICANN community were to try to spill the board, wouldn't we
want that consensus decision to be legally enforceable? Or do we want to
allow a future Board to tell the community it was wrong and, claiming
fiduciary responsibility to the corporation, reject the decision?
>
> Ultimately, we're deciding whether authority should rest with the ICANN
Board and the California AG, or with the ICANN community and the California
AG.
>
> I'm in favor of the latter.
>
> Regards,
> Keith
>
>
> On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo at auda.org.au> wrote:
>
>
> Hi Paul,
>
> I was specifically responding to Keith’s point so hardly a non-sequitur.
>
>
>
> Cheers,
>
>
> Chris
>
>
> On 14 Jun 2015, at 02:29 , Paul Rosenzweig <
paul.rosenzweig at redbranchconsulting.com> wrote:
>
> Chris
>
> We need more formal powers for the community because much of the power of
the NTIA was informal. The only thing that could replace the NTIA precisely
would be the NTIA.  I get that you don't like the membership model. But
asking why a non-governmental solution is different from a governmental one
is just a non sequitur.
>
> Paul
>
> --
> Sent from myMail app for Android
> Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo at auda.org.au
>:
>
> Greetings All,
>
> 1. on Becky’s comment below: if that is correct then surely the same
applies to the relationship between the SO/AC and its Unincorporated
Association. If a court cannot enforce a Board spill by the SOs/ACs then a
court can also not make the UA do what the SO or AC wants. Can it?
>
> 2. on Keith’s comment below: How does the NTIA currently have powers of
enforcement over ICANN outside of matters covered in the IANA contract? If
NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN
which can be terminated by either party and is not legally enforceable, why
should we insist on a higher standard?
>
>
> Cheers,
>
> Chris
>
>
> On 13 Jun 2015, at 02:05 , Drazek, Keith < kdrazek at verisign.com> wrote:
>
> Thanks Becky,
>
> I think you highlight a key point.
>
> Currently, NTIA and the California Attorney General are the only
enforcement bodies ensuring ICANN remains committed to its bylaws.
>
> The membership structure would give some of that authority to the ICANN
community through its existing structures -- the SOs and ACs.
>
> Isn’t that the definition of transitioning the United States government
(in its various forms) out of its unique role?
>
> After NTIA disengages, don’t we want the community to have shared
authority for enforcement, rather than leaving it to the California
Attorney General alone?
>
> Regards,
>
> Keith
>
> From: accountability-cross-community-bounces at icann.org [ mailto:
accountability-cross-community-bounces at icann.org] On Behalf Of Burr, Becky
>
> Sent: Friday, June 12, 2015 11:07 AM
>
> To: Roelof Meijer; Accountability Cross Community
>
> Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart,
Voluntary Model
>
>
>
> Roelof,
>
> shi
>
> As I understand it, Courts view the bylaws as a contract between a
corporation and its members/shareholders.  If ICANN has no members, the
bylaws are not a contract with anyone, so the only party with authority to
enforce would be the Attorney General.  (As discussed elsewhere, this is
extremely unlikely to happen outside of a fraud/corruption situation.)
>
>
>
> The fact that members of SO’s are legal entities doesn’t change this.
Unless they are members of ICANN, they are not a party to the bylaws
“contract.”
>
>
>
> B
>
> J. Beckwith Burr
>
> Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
>
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>
> Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  /
becky.burr at neustar.biz / http://www.neustar.biz
>
>
>
> From: Roelof Meijer < Roelof.Meijer at sidn.nl>
>
> Date: Friday, June 12, 2015 at 8:18 AM
>
> To: Accountability Community < accountability-cross-community at icann.org>
>
> Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart,
Voluntary Model
>
>
>
> Dear all, and especially dear legal colleagues,
>
>
>
> The memo states:
>
>
>
> "If there were a dispute between ICANN and an SO/AC, the parties could
agree to an IRP and binding arbitration, but there would be no mechanism to
restrain ICANN from acting contrary to these decisions, nor would there be
a mechanism to challenge an arbitration decision that exceeded the scope of
authority of the arbitration panel, outside an unlikely, independent
intervention by the California Attorney General. "
>
>
>
> I understand that the SO/AC’s, not being legal entities, cannot take
legal action to enforce. However, does that really equal "no mechanism to
restrain ICANN from acting contrary to these decisions”?
>
>
>
> Most members of SO’s are legal entities, many members of AC’s are too,
couldn’t those members, being affected parties, individually or
collectively take legal action?
>
>
>
> Alternatively, I would assume that before the ultimate step of talking
legal action against ICANN, the community will have escalated through its
powers and thus has completed the procedure to recall the entire board. The
power to recall the entire board will have to be combined with the power to
in one way or another appoint an interim board. So, the community, through
due process, recalls the board. The board, in contradiction with the
bylaws, refuses “to go”. The community has recalled the board and thus,
through the defined process (also in the bylaws), appoints an interim
board. According to the bylaws, this interim board is now the legal
representative of ICANN. And can take the required legal action (if
necessary) to force the “old” board to go away and get lost.
>
>
>
> Would one of these two work?
>
>
>
> Best,
>
>
>
> Roelof Meijer
>
>
>
> From: <Hofheimer>, "Joshua T." < jhofheimer at sidley.com>
>
> Date: donderdag 11 juni 2015 06:09
>
> To: " ccwg-accountability5 at icann.org" < ccwg-accountability5 at icann.org>
>
> Cc: Sidley ICANN CCWG < sidleyicannccwg at sidley.com>, ICANN-Adler <
ICANN at adlercolvin.com>
>
> Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
>
>
>
> Dear Legal Sub-Team,
>
>
>
> Further to the CCWG request on the call last Friday, attached is a memo
revising the summary chart describing the viability of the enumerated
powers under the three models – Member model, Designator Model and
Voluntary Model.  We also explore the impact of not having the SO/ACs
organized legal persons to represent their interests.
>
>
>
> Cheers,
>
> Josh
>
> JOSHUA HOFHEIMER
>
> Sidley Austin LLP
>
> +1.213.896.6061 (LA direct)
>
> +1.650.565.7561 (PA direct)
>
> +1.323.708.2405 (cell)
>
> jhofheimer at sidley.com
>
> http://www.sidley.com
>
>  SIDLEY AUSTIN LLP
>
>
>
>
>
> From: ccwg-accountability5-bounces at icann.org [ mailto:
ccwg-accountability5-bounces at icann.org] On Behalf Of Hilton, Tyler
>
> Sent: Monday, June 08, 2015 8:29 PM
>
> To: ccwg-accountability5 at icann.org
>
> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions
>
>
>
> Dear Legal Sub-team,
>
>
>
> Attached please find a memo responding to the list of questions from the
Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
>
>
>
> Best,
>
>
>
> TYLER HILTON
>
> Associate
>
> Sidley Austin LLP
>
> 555 West Fifth Street
>
> Los Angeles, CA 90013
>
> +1.213.896.6130
>
> thilton at sidley.com
>
> http://www.sidley.com
>
>  SIDLEY AUSTIN LLP
>
>
>
>
>
>
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