[CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Matthew Shears
mshears at cdt.org
Fri Jun 19 14:00:29 UTC 2015
Agree - we are building for 5, 10 + years from now and will see new
CEOs, new Boards, new community compositions, etc.
On 6/19/2015 2:51 PM, James Gannon wrote:
> Very well put Keith +1.
>
> -James
>
> From: <accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>> on behalf
> of "Drazek, Keith"
> Date: Friday 19 June 2015 10:11
> To: Roelof Meijer, Alan Greenberg, Chris Disspain
> Cc: "accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>"
> Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart,
> Voluntary Model
>
> Hi Roelof,
>
> You believe that a future Board would never reject the community’s
> will. I believe it’s a possibility we need to protect against.
>
> 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.
>
> 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.
>
> In the spirit of consensus-building, I hope we’re able to find a way
> to bridge these gaps. I believe we can.
>
> 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
> <mailto: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
> <mailto:alan.greenberg at mcgill.ca>>
> *Date: *dinsdag 16 juni 2015 04:09
> *To: *Roelof Meijer <roelof.meijer at sidn.nl
> <mailto:roelof.meijer at sidn.nl>>, Keith Drazek <kdrazek at verisign.com
> <mailto:kdrazek at verisign.com>>, Chris Disspain <ceo at auda.org.au
> <mailto:ceo at auda.org.au>>
> *Cc: *"accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>"
> <accountability-cross-community at icann.org
> <mailto: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
> <mailto:kdrazek at verisign.com>>
> Date: zondag 14 juni 2015 03:52
> To: Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au>>
> Cc: "accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>"
> <accountability-cross-community at icann.org
> <mailto: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
> <mailto: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
> <mailto: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 <mailto: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
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3akdrazek@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
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.org>
> [mailto:accountability-cross-community-bounces at icann.org
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@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
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz>
> / http://www.neustar.biz <http://www.neustar.biz/>
>
> From: Roelof Meijer <Roelof.Meijer at sidn.nl
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>>
>
> Date: Friday, June 12, 2015 at 8:18 AM
>
> To: Accountability Community <accountability-cross-community at icann.org
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@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
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>>
>
> Date: donderdag 11 juni 2015 06:09
>
> To: "ccwg-accountability5 at icann.org
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>"
> <ccwg-accountability5 at icann.org
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.org>>
>
> Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>>,
> ICANN-Adler <ICANN at adlercolvin.com
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3aICANN@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
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>
>
> http://www.sidley.com <http://www.sidley.com/>
>
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=>
>
> SIDLEY AUSTIN LLP
>
> From: ccwg-accountability5-bounces at icann.org
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>
> [mailto:ccwg-accountability5-bounces at icann.org
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounces@icann.org>]
> On Behalf Of Hilton, Tyler
>
> Sent: Monday, June 08, 2015 8:29 PM
>
> To: ccwg-accountability5 at icann.org
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@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
> <https://e-aj.my.com/x-msg:/e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com>
>
> http://www.sidley.com <http://www.sidley.com/>
>
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>
> SIDLEY AUSTIN LLP
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--
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 (0)771 247 2987
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