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

[Tapani Tarvainen]

This is worrysome. While I can understand the concern about
things like dissolving the company, what's the issue with
document inspection?

After all, transparency is one of the key elements of trust,
and trust is ultimately what will sustain or kill ICANN.

Perhaps some of the lawyers among us could explain what
bad could result from document inspection power of the member?

-- 
Tapani Tarvainen

On Sep 29 20:48, Rudolph Daniel (rudi.daniel at gmail.com) wrote:

> "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 *