[CCWG-ACCT] A contractual solution for the "membership"/accountability problem

[David Post]

To all:

David Johnson and I have been developing an idea 
that might be able to break the impasse between 
the Board and the stakeholders regarding the 
membership model as a vehicle for community 
control over the Board's actions.  Here's David's 
description of the overall idea:

ICANN Accountability ­ Back to Contract

There is broad agreement that the community 
powers recommended by the CCWG should be 
“enforceable”. The proposal assumes that the 
Unincorporated Association that would enforce 
them would have to be created by, and made the 
sole “member” of ICANN, by means of an amendment 
to ICANN’s bylaws. Only the Board can amend the 
bylaws, and they do not want to create a member. 
This would appear to create an unresolvable 
stalemate. Until one recalls the scene from 
Indiana Jones when, treated by a knife twirling 
thug, the hero remembers that he has a gun and uses it.

As CCWG’s counsel have noted, an unincorporated 
association can be formed by any group with the 
requisite intent, with minimal formality. So the 
community UA, consisting of and acting only at 
the direction of the SOs and ACs that make up the 
ICANN community, could be formed directly by the 
actions of that community. The UA, now a legal 
person, could enter into contracts (using 
whatever decision-making process is provided in 
the UA’s own bylaws). It could, for example, make 
an offer to enter into a contract with ICANN 
itself. Such a contract might provide that ICANN 
would promise to adopt and abide by a specified 
set of bylaws (notably, those providing for 
community powers and an enhanced IRP). The 
contract could provide for specific performance 
and dispute resolution (not unlike the MEM, but 
with the group doing the “enforcing” having been 
formed in advance of any bylaw violation). The 
contract could make individual SOs and ACs, or 
even subcomponents of these, into third party 
beneficiaries entitled to enforce the contractual 
promises as against the ICANN corporation. In 
light of these commitments, the community UA 
could itself then promise to give its collective 
approval to the IANA transition.

ICANN’s Board would still need to agree to any 
such contract, to make it binding. But the Board 
would no longer have an objection based on 
supposed dangers of creating a “member”. It has 
said it agrees that the proposed community powers 
should be enforceable, and that IRP decisions 
enforcing revised bylaws and mission statement 
should be binding. The CCWG can reach its own 
consensus on what contractual terms (what draft 
bylaws to include by reference and what community 
decision-making process to use regarding 
decisions to offer and enforce the contract). It 
would be difficult for the Board to refuse to 
sign such a contract ­ once supported and offered 
by an Unincorporated Association consisting of 
the community and acting with requisite consensus).

The community only supported “membership” 
because this was thought to be the only way to 
make the proposed community powers enforceable 
against a reluctant ICANN board. If there is 
another way to accomplish enforceability, while 
avoiding the Board’s objections to “structural 
change” of ICANN itself, that should be 
acceptable. That "other way" is to enter into a 
contract under which ICANN promises to adopt and 
comply with specified bylaws and to establish a binding IRP.
Because there won’t be a binding IRP to enforce a 
duty to create a binding IRP, the registry 
constituency has already suggested that there be 
a contract that requires ICANN to follow through 
on that promise. This suggestion just applies the 
same principle to the entire community and all of 
the proposed community powers. It’s time for ccwg 
to start drafting contract terms.


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Here's a rough outline of the logistics of how this would work:

Acting by consensus resolution, SOs and ACs would 
form an unincorporated association. This would 
include writing bylaws regarding decision-making 
process for the UA (action solely at direction of 
consensus of SOs/ACs?) As its first act, the UA 
would offer ICANN a contract with the following terms.

1. ICANN would agree to adopt and abide by a 
specified set of bylaws (which would be attached 
as an exhibit to the contract) that set forth 
community powers and establishment of binding IRP.

2. The contract would have a term coterminous 
with ICANN’s existence and could not be 
cancelled. (no expiration date and no grounds for termination by ICANN)

3. The contract would call for specific performance.

4. Disputes would be resolved by the IRP, and 
would be binding on ICANN (even if ICANN chose not to appear before the panel).

5. In addition to the UA itself, Any two SOs or 
ACs, acting by internal consensus, could bring a 
case to enforce the provisions, and ICANN would pay the costs of such a case.

6. The contract would name as third party 
beneficiaries any Individual SO/AC, sub 
constituencies and any parties materially harmed 
by breach of the agreement — providing that these 
third parties could also bring a case to enforce 
the agreement, at their own expense, with costs allocated by the IRP).

7. ICANN would promise that, in the event the 
terms of the contract could not be enforced in 
the absence of a “membership” structure, it would 
recognize the UA as a member under California law.

8. ICANN would warrant that it has the authority 
to enter into the agreement and agree that it 
will not assert in the future that compliance 
with the contract would be prevented by any 
claimed conflict between the contract and the 
ability of the Board to exercise its fiduciary duties.

9. The UA would agree, in light of these ICANN 
promises, to support the transition (treating 
ICANN as the steward of the IANA function and as 
the source of policy for dns absent any ability 
of US Government to take that role away).

Obviously, there are still some unresolved 
details regarding what the bylaws would say 
(e.g., re community oversight of budget). These would have to be resolved.


David
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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n
music 
http://tinyurl.com/davidpostmusic  publications 
etc.  http://www.davidpost.com
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*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n
music 
http://tinyurl.com/davidpostmusic  publications 
etc.  http://www.davidpost.com
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