[CCWG-ACCT] Changed Mailing List functionality??
Grace Abuhamad
grace.abuhamad at icann.org
Wed Oct 14 00:47:38 UTC 2015
Hi all,
This happened in an attempt to doc the bounce processing issue we ha d earlier this week. This was a solution, but it is clearly not workable. We have switched the list settings back, but I may take a while to update in the system. Apologies for the inconvenience.
--Grace
Sent from my mobile device
> On Oct 13, 2015, at 20:44, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com> wrote:
>
> It seems that all of a sudden the mailing list functionality has changed so
> that the author is NOT in the "from" line any more. (see example below) Can
> we revert to the former system? My filters screen at least in part based
> upon who is the author and I would prefer to have earlier notice of that
> ....
>
> Paul
>
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> Skype: paul.rosenzweig1066
> Link to my PGP Key
>
>
> -----Original Message-----
> From: Mailing List for the ICANN Accountability & Governance Cross Community
> Group [mailto:accountability-cross-community at icann.org]
> Sent: Tuesday, October 13, 2015 7:17 PM
> To: Aikman-Scalese, Anne <AAikman at lrrlaw.com>; David Post
> <david.g.post at gmail.com>; Accountability Cross Community
> <accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] A contractual solution for the
> "membership"/accountability problem
>
> Anne,
>
> The Sidley memo makes it clear that we do not have clarity on what
> constitutes a fiduciary duty and what does not. Clearly budget and plan are
> in the ring. If we had been asking for the power to unilaterally change
> Bylaws, that, in my mind, would be out of scope. But since we are asking for
> joint agreement, I think we are ok. Director removal (1 by 1 or en masse
> seems to be ok, since it is a designator right and the most recent Sidley
> memo says that we are designators even if the word is not used. So I think
> we are ok with all but bidget/plan.
>
> But to be honest, if we ever have to ditch the board to effect
> accountability, I think that we will be in a VERY poor position to defend
> ICANN's position in Internet governance and in overseeing the areas that we
> are responsible for. There are many forces around that would be delighted to
> see us break down in internal battles.
>
> As I said in an earlier message, a superbly accountable ICANN that no longer
> has any responsibility is not particularly attractive to me.
>
> Alan
>
> At 13/10/2015 06:41 PM, Aikman-Scalese, Anne wrote:
>> P.S. to Alan: my understanding is that the member model is the only
>> way to relieve the Board of fiduciary responsibility as to retained
>> community powers.
>>
>> Now it appears that under the CA statute, the proposal for binding
>> arbitration as to issues proposed for community enforceability would
>> violate that fiduciary duty. In other words, in the current corporate
>> structure, the Board cannot properly delegate any of the decisions
>> listed in the community powers in Items 1-6 in the Plan B chart from
>> this morning's call to an arbitration panel (except maybe removal of
>> directors for cause?.) Perhaps this was abundantly clear to everyone
>> else but me? Steve and Jonathan?
>>
>> This makes me wonder whether the Board's MEM proposal was reviewed for
>> compliance with CA law by Jones Day. I don't recall the Board stating
>> the MEM proposal and the binding arbitration mechanism would not apply
>> to budget and strategic plan but maybe they already said
>> that. So again, how does that fit with the
>> Final Report of the CWG-Stewardship?
>>
>> Anne
>>
>> Anne E. Aikman-Scalese
>> Of Counsel
>> Lewis Roca Rothgerber LLP |
>> One South Church Avenue Suite 700
>> Tucson, Arizona 85701-1611
>> (T) 520.629.4428 | (F) 520.879.4725
>> AAikman at lrrlaw.com | www.LRRLaw.com
>>
>> -----Original Message-----
>> From: Alan Greenberg [mailto:alan.greenberg at mcgill.ca]
>> Sent: Tuesday, October 13, 2015 3:18 PM
>> To: Aikman-Scalese, Anne; David Post; Accountability Cross Community
>> Subject: RE: [CCWG-ACCT] A contractual solution for the
>> "membership"/accountability problem
>>
>> Yes I read it. It does say that the line is unclear, but that certain
>> responsibilities cannot be delegated including budget and strategic.
>> Plan. Our lawyers have been clear for a long time that budget and plan
>> veto are problematic in a non-member situation. And that matches the
>> Board's position that to give this up impacts their fiduciary duty (and
>> I agree).
>>
>> The ALAC has said it would reluctantly accept the member model, but it
>> is not our preference, and that implies we are willing to forego the
>> budget/plan veto.
>>
>> Alan
>>
>> At 13/10/2015 05:45 PM, Aikman-Scalese, Anne wrote:
>>> Alan, did you read the Sidley memo Mathieu circulated that says the
>>> in the current corporate structure, the ICANN Board cannot delegate
>>> decision-making in relation to the corporation to any third party,
>>> including via binding arbitration? This is on page 2 of the Appendix.
>>> Wouldn't that also impact a contract theory where decision-making in
>>> relation to budget/plan veto is delegated via contract to the party
>>> on the other side of the contract?
>>> Anne
>>>
>>> Anne E. Aikman-Scalese
>>> Of Counsel
>>> Lewis Roca Rothgerber LLP |
>>> One South Church Avenue Suite 700
>>> Tucson, Arizona 85701-1611
>>> (T) 520.629.4428 | (F) 520.879.4725
>>> AAikman at lrrlaw.com | www.LRRLaw.com
>>> -----Original Message-----
>>> From:
>>> accountability-cross-community-bounces at icann.org
>>> [mailto:accountability-cross-community-bounces at icann.org]
>>> On Behalf Of Alan Greenberg
>>> Sent: Tuesday, October 13, 2015 1:36 PM
>>> To: David Post; Accountability Cross Community
>>> Subject: Re: [CCWG-ACCT] A contractual solution for the
>>> "membership"/accountability problem
>>>
>>> With the usual "I am not a lawyer disclosure", my understanding is
>>> that the Bylaws are effectively a contract. In all of the contructs
>>> (whether it is the CMSM, CMSD or (my most recent
>>> proposal) CMSanything, there is an UA composed of the AC/SO (or a
>>> subset), or in the earlier models multiple UA, one per AC/SO. In the
>>> Board proposal, since I do not believe that the AC/SO Chairs are
>>> willing to assume responsibility for taking actions personally (nor
>>> should they be expected to), there would also have to be an UA formed
>>> to act on behalf of the AC/SOs. As I understand it, the UA would have
>>> to exist at the time the of the violation or act that it was
>>> complaining about, so that really implies it would have to exist at
>>> the start (since one cannot predict when trouble will arise.
>>>
>>> So in my mind, the CMSx, the Board proposal, and your new one all
>>> really have a common construct of a UA acting on behalf of the AC/SOs.
>>> The differences are in how the "contract" or the Bylaws allow the UA
>>> to act.
>>>
>>> The recent legal briefing on our current model (ie in the Bylaws
>>> today) says that although the AC/SOs and NomCom that appoint board
>>> members are not called designators, for all intents, they are. The
>>> new constructs (any of them) would allow the AC/SOs or a subset to
>>> exercise the powers other than appointment of directors. We have been
>>> told (by CCWG
>>> lawyers) that these powers are enforceable (other than budget/plan
>>> veto).
>>>
>>> From a practical point of view, I think that all of the proposals
>>> are in fact very close to each other, but the different terminology
>>> and in some cases, a lack of precision masks that similarity.
>>>
>>> Alan
>>>
>>> At 13/10/2015 04:08 PM, David Post 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
>>>> *******************************
>>>> _______________________________________________
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>>>> y
>>>
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