[CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

Wed Sep 30 00:26:50 UTC 2015

Thanks Jordan.  I have also been wondering what sort of “checks and balances” could be placed on a Sole Member that does not consist of active participation of all SOs and ACs.  I was curious to know from the attorneys whether actions of the Sole Member could be subject to an IRP, for example,  in relation to removal of a director for cause – if cause were linked to the attached ICANN Director Code of Conduct.

I do think the removal would have to stand (or at least the director should not be allowed to vote) pending Independent Review. ( Maybe this was already covered in discussions before I joined this group.  If so, I apologize.)
Anne

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Anne E. Aikman-Scalese, Of Counsel

Lewis Roca Rothgerber LLP

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From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Jordan Carter
Sent: Tuesday, September 29, 2015 5:15 PM
To: Accountability Cross Community
Subject: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

Hi all

One of the pieces of feedback from Board members I heard in L.A. was a concern that basically goes like this:

"The Single Member is a problematic idea because of the incredible powers it has under California law - for instance, it could even dissolve ICANN!"

There were some sub-themes to this concern:

- the accountability of SO/AC actors in exercising the powers intended for the CMSM
- the absence of fiduciary duties on the Single Member in making its decisions
- the engineering principle of minimal change at a time

Focusing on the overarching concern, it was a tenet of the CCWG's Second Draft Proposal that the CMSM should be largely ruled out from exercising any of the powers the community didn't propose it had.

That is, aside from the five community powers and the ability to enforce the bylaws against the Board, the other powers the California law grants to member/s (document inspection, dissolve the company, etc), should face such high thresholds to action that they can, practically speaking, never be actioned at all.

[The Second Draft Proposal may not have been terribly clear about this, but that's what it was driving at.]

So how to resolve this? The CCWG's choice of a Single Member (following its earlier choice of multiple members) was to meet the accountability requirements the community has asked for. But nobody asked for the community to have these other powers.

Here is a suggestion.

For the exercise of any of the Member Powers the CMSM would have (beyond those we "want" it to have), why don't we include the ICANN Board as one of the groups that has to vote / come to consensus to exercise them?

This sounds a little strange on the face of it but think it through.

This seems to me to be a very simple way to avoid the problem.

It acknowledges that the rights of the Member are set out in law and can't be eroded - that they can only be managed by the decisions that member is able to take. And it acknowledges that the concerns about constraining the possible actions of the member to those that are intended, should be solved. It shares power in the model in quite a nice, dare-I-say-it, "multistakeholder" way.

I'd welcome others' thoughts. I'd welcome views from our lawyers about this, too. On the face of it I can't see any reason this wouldn't work in law, since the CMSM can be comprised of any set of ICANN actors. But - I Am Not A Lawyer.

cheers
Jordan

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