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

[Chartier, Mike S]

Agree.
I think the level of consent ultimately reduces to whatever consent is needed to amend the bylaw, however.

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Steve DelBianco
Sent: Tuesday, September 29, 2015 8:29 PM
To: Jordan Carter; Accountability Cross Community
Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

Good idea to start this thread, Jordan.

I learned in Los Angeles that Jones Day had not noticed how CCWG proposed to restrict the single member’s ability to exercise some statutory powers (such as dissolving the corporation or forcing a new bylaw).

So, first step is hear whether Jones Day now supports our notion of using bylaws to require an extraordinary level of consensus in the community before such powers could be used.

I appreciate your idea of adding the Board to the other AC/SO community who would have to approve the Single Member exercising those extreme powers.

But I think we should start by requiring unanimous consent of the ACs and SOs defined in ICANN bylaws.    Then, if Jones Day says THAT'S not enough, we could add the board too.


From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Jordan Carter
Date: Tuesday, September 29, 2015 at 8:15 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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Jordan Carter

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