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

Fri Jun 19 19:31:36 UTC 2015

Jordan,

I am not sure if all concerns are “well canvassed” already, but I am not adding any (or hiding now to spring on you later) new ones

Cheers,

Roelof

From: Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>
Date: vrijdag 19 juni 2015 19:50
To: Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>>
Cc: Roelof Meijer <roelof.meijer at sidn.nl<mailto:roelof.meijer at sidn.nl>>, "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

+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<mailto: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<mailto: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<mailto:kdrazek at verisign.com>>
Date: vrijdag 19 juni 2015 15:11
To: Roelof Meijer <roelof.meijer at sidn.nl<mailto:roelof.meijer at sidn.nl>>, Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>>, 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

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

--
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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<tel:%2B%201.202.533.2932>  Mobile:  +1.202.352.6367<tel:%2B1.202.352.6367>  / 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
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http://www.sidley.com<http://www.sidley.com/>

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 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<tel:%2B1.213.896.6130>
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/>

<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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