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

Fri Jun 19 17:50:10 UTC 2015

+1, but also a question for you Roelof:

The unintended side effects you mention - are they the ones associated with
the well-canvassed concerns around UAs, or do they go more broadly to the
allocation of authority beyond the Board of directors? Or something else?
Is it something you've teased out in a previous note?

cheers
Jordan

On 19 June 2015 at 14:44, Chris Disspain <ceo at auda.org.au> wrote:

> Roelof,
>
> Exceptionally well put!
>
>
>
> Cheers,
>
>
> Chris
>
> On 20 Jun 2015, at 03:38 , Roelof Meijer <Roelof.Meijer at sidn.nl> wrote:
>
> Keith,
>
> Here’s your bridge across the gap:
>
> "I believe ultimate authority must be with ICANN’s global
> multi-stakeholder community through its current and future SO-AC structures.
> ”
>
>
> I fully share that belief. Where we differ is that you feel that
> authority will have to be legally enforceable. I belief that is
> unnecessary (and introduces all kinds of unwanted side effects), because it
> is "socially enforceable” (for lack of a better term; see my " that board
> would be paralyzed in all ways, face shame and defamation individually on a
> global scale and would ruin their personal careers completely”)
>
> Best,
>
> Roelof
>
> From: <Drazek>, Keith Drazek <kdrazek at verisign.com>
> Date: vrijdag 19 juni 2015 15:11
> To: Roelof Meijer <roelof.meijer at sidn.nl>, Alan Greenberg <
> alan.greenberg at mcgill.ca>, 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
>
> 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
> <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>" <
> 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
> <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
> <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
>
>
> 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
>
>
> <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
>
>
> <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
>
>
>
>
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*InternetNZ*

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