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

Rudolph Daniel rudi.daniel at gmail.com
Wed Sep 30 00:48:33 UTC 2015


"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."

Yes , interesting, I understood Fadi today expressing a concern (my take on
it)....how do we ensure ..in the single member model, that we have
inclusion in consensus, rather than allowing a subset of the community to
exercise that power without the Full acceptance of the community..and that
can easily be construed as a capture scenario that needs to be stress
tested.

Interesting take on the problem Jordon, but as you suggest...over to the
legal minds..
RD
On Sep 29, 2015 8:15 PM, "Jordan Carter" <jordan at internetnz.net.nz> wrote:

> 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
>
> --
> Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> +64-4-495-2118 (office) | +64-21-442-649 (mob)
> Email: jordan at internetnz.net.nz
> Skype: jordancarter
> Web: www.internetnz.nz
>
> *A better world through a better Internet *
>
>
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>
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