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

Tue Oct 13 21:28:04 UTC 2015

Very interesting, and very clever. It does seem more cumbersome than SMM, and with more moving parts, but if the Board could get on board with this I think we should consider it. 

> On 13 Oct 2015, at 21:08, David Post <david.g.post at gmail.com> wrote:
> 
> 
> 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.
> 
> 
> ***********************************************
> 
> 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
> *******************************
> 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
> *******************************
> 
> *******************************
> 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
> ******************************* 
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community