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<body>
From a purely sociological point of view, I find it fascinating that we
are trying to allow for the worst case with actions of the Board, but are
presuming the best of behaviors for those associated with the AC/SO/UAs,
yet all are drawn from essentially the same population. As Jan Scholte
has advised, we must also allow for the community or parts of it going
rogue or disengaging.<br><br>
Similarly, we are talking about creating UAs so that they can sue to
address what they consider abhorrent behaviour on the part of ICANN or
its Board, but presume that they themselves will not be sued - even in
the form of a counter-suit. <br><br>
Alan<br><br>
At 01/05/2015 06:12 PM, Chris Disspain wrote:<br>
<blockquote type=cite class=cite cite="">Keith,<br><br>
Thanks. <br><br>
All of that may be fine but unless I've misunderstood, it's all
unenforceable because the SO or AC is not a legal entity and therefore
cannot sue the UA of a member of it. In other words, the same as is
true for the SO/ACs in their relationship with ICANN. <br><br>
Cheers,<br>
<br>
Chris <br><br>
<br><br>
On 2 May 2015, at 01:05, Drazek, Keith
<<a href="mailto:kdrazek@verisign.com">kdrazek@verisign.com</a>>
wrote:<br><br>
<blockquote type=cite class=cite cite="">How about this for
enforceability?<br>
<br>
1. The SO/AC communicates its
instructions in written form to the member/UA. <br>
2. The member/UA acts as the
“deliverer” of the SO/AC decision, as instructed in writing. <br>
3. If the UA/member acts in a manner
that appears inconsistent with the SO/AC’s written instructions, the
issue is referred back to the SO/AC for review.<br>
4. Institute a confirmation period
where every SO/AC reviews and confirms the action of its member/UA before
any decision is finalized.<br>
5. If the UA/member is confirmed to
be acting outside written instructions, the UA/member is replaced by the
SO/AC and the process repeats.<br>
<br>
Keith<br>
<br>
<b>From:</b>
<a href="mailto:accountability-cross-community-bounces@icann.org">
accountability-cross-community-bounces@icann.org</a>
[<a href="mailto:accountability-cross-community-bounces@icann.org" eudora="autourl">
mailto:accountability-cross-community-bounces@icann.org</a>] <b>On Behalf
Of </b>Chris Disspain<br>
<b>Sent:</b> Friday, May 01, 2015 2:00 AM<br>
<b>To:</b> Jordan Carter<br>
<b>Cc:</b> Accountability Cross Community<br>
<b>Subject:</b> Re: [CCWG-ACCT] Legal question<br>
<br>
<dl>
<dd>Presumably because they only act on instructions of the SO or AC.
<br><br>
</dl> <br>
Just as, in the current model, there is no enforceability mechanism for
the SOs and ACs to make the Board of ICANN do what the bylaws say they
should, how can there be an enforceability mechanism for the SOs and ACs
to make the UA do as instructed in the proposed model? <br>
<br>
<br>
Cheers,<br>
<br>
Chris<br>
<br>
On 1 May 2015, at 15:41 , Jordan Carter
<<a href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a>
> wrote:<br>
<br><br>
Presumably because they only act on instructions of the SO or AC. <br>
<br>
An easy way to imagine it: the ccnso council has a section of its meeting
when it is 'acting as the member' and does relevant things.<br>
<br>
The ccnso can deal with things being done wrong 'as a member' as it can
when they are being done wrong 'as the ccnso'. <br>
<br>
Does that help?<br>
<br>
Jordan <br><br>
On Friday, 1 May 2015, Chris Disspain
<<a href="mailto:ceo@auda.org.au">ceo@auda.org.au</a>> wrote:<br>
<dl>
<dd>If the UA is only activated when the SO/AC tells its appointed
members to act, tight control should not be difficult at all.<br><br>
</dl> <br>
How do you ensure the ‘appointed members’ do as the SO/AC wishes
unless the SO/AC can enforce?<br><br>
<br><br>
<br><br>
Cheers,<br><br>
<br><br>
Chris<br>
<br>
On 1 May 2015, at 15:09 , Greg Shatan <gregshatanipc@gmail.com>
wrote:<br><br>
<br>
It really goes to how the members of the UA are chosen (a UA needs only
two members, so they can be officers of the SO/AC or chosen by some other
process) -- it need not be as you describe (though what you describe is a
reasonable possibility given the proper circumstances). If the UA
is only activated when the SO/AC tells its appointed members to act,
tight control should not be difficult at all.<br>
<br>
I may have to take your word on the penguins, as you are far closer to
their native habitat than I. (Though I would note that the Central
Park penguins are international movie stars, due to the move
"Madagascar" and its offspring.) However, to be fair, I
was actually thinking of a tube television set and not a flat screen TV,
so we may have some misunderstanding at work here as well (See</u>,
"Penguin on the Telly," Monty Python, 1971,
<a href="https://youtu.be/pwTqC2T6q4E">https://youtu.be/pwTqC2T6q4E</a>
) I do think a large console TV would not be salubrious to a
penguin beneath it, while it would provide a pleasant perch for the
penguin (barring any unfortunate explosions). With a flat screen
TV, the opposite applies. <br>
<br>
So, in each case, it's a matter of how the object is designed, not merely
a matter of what the object is.<br>
<br>
Greg<br>
<br>
On Fri, May 1, 2015 at 12:53 AM, Chris Disspain <ceo@auda.org.au>
wrote:<br>
Leaving aside your penguin analogy (and incidentally you CAN put a
television on top of a penguin and it is, in fact, likely to stay there
far longer than the penguin will stay on top of the television) I think
you may have misunderstood me.<br>
<br>
I completely get that the members of the UA control it. The point we are
discussing is how members of SO/AC who are NOT members of the UA can
ensure that the UA doesn’t go rogue or does what the SO/AC wants. <br>
<br>
Unless I’m mistaken, to overcome the possibility that an SO or AC
won’t itself want to become an UA or that to do so will involve a
significant decrease in membership, the idea is that a UA is set up and
those members of the SO or AC who feel comfortable doing so can become
members of the UA (minimum 2) or the SOAC can nominate members. Fine. BUT
the SO/AC itself is NOT a member and it is the SO/AC that the UA is
representing as a member. <br>
<br>
How does the SO/AC ensure the UA does its bidding? <br>
<br>
Surely the only folks who can control the UA are its members so how does
the SO/AC ensure that those UA members follow the instructions of the
SO/AC. Surely this is precisely the same conundrum as the SO/AC ICANN
one. For anything to be enforceable the SO/AC would need to be a legal
entity or every member of the SO/AC would need to join the UA which
amounts to the same thing. <br>
<br>
What am I missing here?<br>
<br><br>
<br><br>
Cheers,<br><br>
<br><br>
Chris<br>
<br>
On 1 May 2015, at 14:34 , Greg Shatan <gregshatanipc@gmail.com>
wrote:<br><br>
<br>
Also, UAs are member associations in their essence, so control of the
members gives you control of the UA. That's very different from a
non-profit (non-membership) corporation. So, it's really
diametrically opposite to the relationship between ICANN and the SO/ACs
in very fundamental ways. Saying that "the same would
apply" in the ICANN situation is like saying that because you can
put a penguin on top of a television, you can put a television on top of
a penguin.....<br>
<br>
On Fri, May 1, 2015 at 12:30 AM, Greg Shatan
<gregshatanipc@gmail.com> wrote:<br>
If the SO/ACs created ICANN, it might apply. Unfortunately, it's
the other way around.<br>
<br>
On Fri, May 1, 2015 at 12:28 AM, Chris Disspain <ceo@auda.org.au>
wrote:<br>
Thanks Greg.<br>
<br>
I'll consider the points you make on policy and indeed the fundamental
underpinnings of the ICANN model and respond in the next day or so. <br>
<br>
However, on the legal question:<br>
<br>
<dl>
<dd>Finally, I have to say I disagree with your contention that each
SO/ACs would need to become an unincorporated association
("UA") rather than merely create one. Admittedly, the
issue of how each SO/AC can control its "alter ego" has not
been fully fleshed out. However, I believe this was discussed at
some length on the legal sub team call and it seems that between the
bylaws of the UA and the charter of the SO/AC there should be very tight
control by the SO/AC over any actions of the UA.<br><br>
</dl> <br>
I look forward to hearing how a combination of the bylaws of the UA and
the SO/AC charters will work to provide very tight control by the SO/AC.
If they do then surely the same would apply to the ICANN bylaws and the
SO/AC charters providing a similarly tight control over the actions of
ICANN. <br>
<br>
Cheers,<br>
<br>
Chris <br><br>
On 1 May 2015, at 13:50, Greg Shatan <gregshatanipc@gmail.com>
wrote:<br>
<dl>
<dd>Chris,<br>
<dd> <br>
<dd>Here are my preliminary thoughts:<br>
<dd> <br>
<dd>First, though you said you don't want to debate the example itself,
the example troubles me and I think it goes deeper than the
example. I think that the establishment of a "TMCH for
IGOs" would be new gTLD policy, and almost certainly Consensus
Policy, and thus should not be adopted as the example states.
Instead, it should be directed down the PDP path to the GNSO.
Indeed, if I am not mistaken, that is what happened and resulted in the
IGO/INGO Curative Rights Working Group, which may or may not make policy
recommendations consistent with the GAC advice. So, I think the
premise that the example was meant to demonstrate -- that GAC advice is
due more deference than any other input to the Board and that only the
Board can set a course contrary to GAC advice -- seems faulty.<br>
<dd> <br>
<dd>This also highlights that the point is not unique to the GAC; it is
equally true of the GNSO (or rather, it is true of Board decisions that
emanate from the GNSO's processes). The Board could adopt policy
recommendations from the GNSO that are reflected in the budget, only to
have a supermajority of the Membership send the budget back.<br>
<dd> <br>
<dd>Fundamentally, whether there is a Board action that results from GAC
Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff
or elsewhere), it is a Board action. And a fundamental premise of
the CCWG's work is that certain Board decisions will now be subject to
certain specified constraints being placed in the hands of the
Membership.<br>
<dd> <br>
<dd>To answer your direct question -- this is not a fundamental shift in
the standing of GAC advice and thus a fundamental change in the GAC’s
interface with the rest of ICANN; it's something more wide-ranging than
that. It is a fundamental shift in the standing of certain Board
decisions (whatever their provenance) and thus a fundamental change in
the Board's interface with the community.<br>
<dd> <br>
<dd>Frankly, if we were to propose that a multilateral organization gets
the last word over the global multistakeholder community (as represented
by the proposed Membership), we would have failed by most yardsticks --
not least the yardstick set forth by the NTIA for the IANA stewardship
transition.<br>
<dd> <br>
<dd>Finally, I have to say I disagree with your contention that each
SO/ACs would need to become an unincorporated association
("UA") rather than merely create one. Admittedly, the
issue of how each SO/AC can control its "alter ego" has not
been fully fleshed out. However, I believe this was discussed at
some length on the legal sub team call and it seems that between the
bylaws of the UA and the charter of the SO/AC there should be very tight
control by the SO/AC over any actions of the UA.<br>
<dd> <br>
<dd>Greg <br>
<dd> <br>
<dd>On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain
<ceo@auda.org.au> wrote:<br>
<dd>Jordan, Greg, <br>
<dd> <br>
<dd>I would like to focus upon two of Jordan’s responses in his note of
22 April. Greg you asked me a similar question re the GAC point - <br>
<dd> <br>
<dd>GAC:<br>
<dd> <br>
<dd>CD: However I see a serious incompatibility between the members’
powers and the standing of GAC advice to the Board. It’s not that GAC
advice is or indeed should be invariably followed but currently where GAC
advice is at odds with the position of others in the community the advice
carries significant weight and there is a bylaw mandated process for
rejecting the advice through a process which takes around 6 months. The
change to a members based structure would mean that for certain issues
the actions of members will trump GAC advice. So there is a significant
shift in the carefully constructed balance of power. Now, many of us may
think that such a shift is no bad thing but I wonder whether the
governments of the world are going to agree?<br>
<dd> <br>
<dd>JC: I don't understand this. I have not seen any hint of anyone
suggesting that a power that Members should have includes overriding
decisions on matters of public policy, which is the advice that the GAC
gives the Board and which the bylaws would continue to require it to give
due deference to (perhaps with an adjustment about when that
reconciliation process has to happen, should GAC change its operating
principles).<br>
<dd> <br>
<dd>If GAC advice on public policy matters led to changes in the bylaws,
or the inclusion by the Board of business or strategic plans or budgets,
then the new powers might have an impact. But all that would require the
Board and the GAC to do is to persuade the broader ICANN system, or at
least some of it, that their ideas are ones that should be pursued.<br>
<dd> <br>
<dd>Does that feel like a fundamental issue to you? It doesn't to
me.<br>
</i>
<dd> <br>
<dd>I’m saying is that it might well be a fundamental issue for GAC
members. Using an example is the best way to illustrate my point, though
I don’t want to get into a debate on the likelihood or otherwise of the
example itself. The ICANN Board receives (and will continue to receive)
advice from the GAC that potentially affects the ICANN Budget.<br>
<dd> <br>
<dd>Consider a situation where the GAC advises that ICANN should create a
repository, much like the TMCH, for the acronyms of IGOs. The repository
would be used to advise the relevant IGO that their acronym has been
registered in a given gTLD and also to advise the registrant that their
registration matches a name in the repository.<br>
<dd> <br>
<dd>Assuming that the Board accepts this advice, it would then be
required to make a budgetary allocation for establishment of the
repository and an annual operating budget.<br>
<dd> <br>
<dd>In the scenario we are discussing regarding members’ powers, it
would be possible for the community to veto the Budget on this point.
This then creates a conflict between the public policy advice from the
GAC and the powers of members. Should such a situation occur, how would
you see it being resolved? Is this not a fundamental shift in the
standing of GAC advice and thus a fundamental change in the GAC’s
interface with the rest of ICANN? <br>
<dd> <br>
<dd>SOs/ACs generally:<br>
<dd> <br>
<dd> <br>
<dd>CD: Further, quite a number of ccTLD managers are departments of the
relevant government or quasi-government bodies. Not everyone runs their
ccTLD with the degree of freedom that .au, .ca, .uk and .nl are
privileged to enjoy. I consider it highly unlikely that sovereign
governments will permit a government department to join an association in
the US (or any other country for that matter).<br>
<dd> <br>
<dd>JC: They won't have to, to do what they do in ICANN today.<br>
<dd> <br>
<dd>The suggestion is they might have to if they want to take part in
exercising the accountability powers set out in our report that's going
for public comment.<br>
<dd> <br>
<dd>That said, there's a bit of an objective legal question here - which
is whether the decisions of these uninc associations can be forced to
take account of the views expressed in the ICANN bodies they shadow in
making their decisions. If they can (which I would analogise to the ccNSO
taking on board the views of non-member ccTLDs - and so I assume it is
possible), much of this debate becomes moot.<br>
<dd> <br>
</i>
<dd>You make a good point about the legal question. It is one I have yet
to see an answer to.<br>
<dd> <br>
<dd>This relates to the comment I made yesterday.<br>
<dd> <br>
<dd>The only way I can see to ensure that the views of ICANN bodies are
taken into account is if those SO/ACs become the unincorporated
associations themselves. Creating shadow organisations gives rise to the
question you raise and significant concerns regarding the accountability
of these “alter egos”. To me, this seems like an attempted solution
that simply adds another layer of complexity. But maybe counsel’s
response to the question I raised yesterday will answer the point.<br>
<dd> <br>
<dd> <br><br>
<dd> <br><br>
<dd> <br><br>
<dd>Cheers,<br><br>
<dd> <br><br>
<dd>Chris<br>
<dd> <br>
<dd>On 30 Apr 2015, at 09:38 , Chris Disspain <ceo@auda.org.au>
wrote:<br><br>
<br>
<dd>Thanks Greg. Clear and understood.<br>
<dd> <br>
<dd>What will the control mechanisms be between the ccNSO and its alter
ego and how will they be enforced?<br>
<dd> <br>
<dd> <br>
<dd> <br>
<dd> <br>
<dd>Cheers,<br>
<dd> <br>
<dd>Chris<br>
<dd> <br>
<dd>On 30 Apr 2015, at 09:28 , Greg Shatan
<gregshatanipc@gmail.com> wrote:<br><br>
<br>
<dd>Chris,<br>
<dd> <br>
<dd>Please let me try to clarify my understanding of what is currently
being proposed (in draft). The SO/ACs will not be
"converted" into legal entities. Rather, a
"mirror" or "alter ego" entity will be set up for
each SO/AC, likely as a unincorporated association (which is a recognized
legal entity under California law). Each SO/AC will control its
alter ego. This is quite similar to the relationship between the ASO and
the NRO. The SO/ACs will continue to exist and will perform and
operate as they currently do. The legal entities will be the
members (or designators, should that route be chosen) of ICANN, with the
specific rights and powers ascribed to them in that capacity by statute
and bylaw. <br>
<dd> <br>
<dd>Technically, the unincorporated associations only need a minimum of
two members, so any "members" of a SO/AC who don't wish to be
members of the alter ego won't need to be. The control arrangements
between the SO/AC and the alter ego will ensure that all
"members" of the SO/AC (and even non-members, such as non-ccNSO
ccTLDs, if desired) get the appropriate "say" in any decisions
that are to be carried out by the alter ego.<br>
<dd> <br>
<dd>Best regards,<br>
<dd> <br>
<dd>Greg<br>
<dd> <br>
<dd> <br>
<dd> <br>
<dd>On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain
<ceo@auda.org.au> wrote:<br>
<dd>Jordan,<br>
<dd> <br>
<dd>Apologies for taking so long to respond!<br>
<dd> <br>
<dl>
<dd>Nobody is proposing converting the SOs and ACs to anything - at all -
anywhere.<br><br>
</dl>
<dd> <br>
<dd>I’m confused. Greg seems o think that’s exactly what was being
proposed. Do we have clarity on this yet?<br>
<dd> <br>
<dd>I’ll respond to the balance of your points later today.<br><br>
<dd> <br><br>
<dd> <br><br>
<dd>Cheers,<br><br>
<dd> <br><br>
<dd>Chris<br>
<dd> <br>
<dd>On 22 Apr 2015, at 16:02 , Jordan Carter
<jordan@internetnz.net.nz> wrote:<br>
<dd> <br>
<dl>
<dd>Hi all, hi Chris:<br>
<dd> <br>
<dd>On 22 April 2015 at 11:07, Chris Disspain <ceo@auda.org.au>
wrote:<br>
<dd>Hi Keith,<br>
<dd>As promised I set out in brief below some of the reasons why, in
respect to the membership model and any model requiring the SOs and ACs
to convert to legal entities, I have serious concerns and why I referred
to significant sacrifices.<br>
<dd> <br>
<dd>Nobody is proposing converting the SOs and ACs to anything - at all -
anywhere.<br>
<dd> <br>
<dd>The only proposal that I've seen from the lawyers is that if
membership was the model chosen, legal personality would need to be
created. The actors in the various SOs and ACs would, in exercising
membership prerogatives, act through the unincorporated
associations.<br>
<dd> <br>
<dd>The lawyers have also been clear that even in a designator model,
it's preferable to create legal personality along those lines.<br>
<dd> <br>
<dd>I think it is really really really important for everyone involved in
this effort to be very precise and clear about what we are discussing and
what we aren't. So I am writing this so directly in order that if my
understanding is wrong, it gets picked up pronto! :-)<br>
<dd> <br>
<dl>
<dd>GAC<br>
<dd>The current recommended model does not provide any viable solution
for dealing with the GAC. It seems obvious to me that the governments
involved in the GAC are not going to agree to form an unincorporated
association under Californian law. If I'm right then presumably the GAC
would remain as an advisory committee and would not be able to have a
vote in any of the escalation mechanisms. That may be fine as the GAC may
not want to have a vote anyway.<br><br>
</dl>
<dd> <br>
<dd>Indeed it may not. Being able to offer advice on public policy issues
to the ICANN Board and to appoint a non-voting liaison member to the
Board. I am looking forward to hearing their views on this (and many
other questions).<br>
<dd> <br>
<dl>
<dd>However I see a serious incompatibility between the members’ powers
and the standing of GAC advice to the Board. It’s not that GAC advice
is or indeed should be invariably followed but currently where GAC advice
is at odds with the position of others in the community the advice
carries significant weight and there is a bylaw mandated process for
rejecting the advice through a process which takes around 6 months. The
change to a members based structure would mean that for certain issues
the actions of members will trump GAC advice. So there is a significant
shift in the carefully constructed balance of power. Now, many of us may
think that such a shift is no bad thing but I wonder whether the
governments of the world are going to agree?<br><br>
</dl>
<dd> <br>
<dd>I don't understand this. I have not seen any hint of anyone
suggesting that a power that Members should have includes overriding
decisions on matters of public policy, which is the advice that the GAC
gives the Board and which the bylaws would continue to require it to give
due deference to (perhaps with an adjustment about when that
reconciliation process has to happen, should GAC change its operating
principles).<br>
<dd> <br>
<dd>If GAC advice on public policy matters led to changes in the bylaws,
or the inclusion by the Board of business or strategic plans or budgets,
then the new powers might have an impact. But all that would require the
Board and the GAC to do is to persuade the broader ICANN system, or at
least some of it, that their ideas are ones that should be pursued.<br>
<dd> <br>
<dd>Does that feel like a fundamental issue to you? It doesn't to
me.<br>
<dd> <br>
<dl>
<dd><a name="14d0df7859a1de94_14d0dd302fecde49_14d0db"></a>ccTLDs<br>
<dd>When we set up the ccNSO and when we did the structural review of it
some time thereafter there was considerable discussion about how it could
be structured precisely to avoid the need for ccTLDs to join anything.
There was even significant concern about having to fill out a form and
whether that implied the existence of some organisation. The concerns
included joining something in the jurisdiction of the US and whether that
would make a ccTLD manager in any way subject to US law, the possibility
of being sued in the US because the manager would be deemed to have a
presence there, how such a structure would be funded (especially if it
was sued), whether there was any liability on ‘officers’ of the
entity and so on. I believe that many of these concerns will still exist
for many ccTLDs.<br><br>
</dl>
<dd> <br>
<dd>They may or may not. But in that fifteen-years-ago debate, were there
any facts on the table about those questions? Or was it all a bit of a
mess on many fronts? Because ICANN in 2015 is, better or worse, a very
different beast to ICANN in ~ 2000. <br><br>
<dd>Perhaps more importantly, exercising some rights through an
unincorporated association would remain a choice for every ICANN
participant. Nobody would be forced to be involved. It isn't like a
"Join ICANN and have no say" - all the current structures for
the "business of the business" would remain in place.<br>
<dd> <br>
<dd>From the legends I have heard about this early phase in ICANN's
history, the fundamental concern was of a power-grab on the corporation's
part. Since these reforms make such a power-grab harder (and let's
remember that the end of the NTIA contract makes it easier...), I'd
expect ccTLDs and others to look at them with quite some interest.<br>
<dd> <br>
<dd> <br>
<dl>
<dd>Further, quite a number of ccTLD managers are departments of the
relevant government or quasi-government bodies. Not everyone runs their
ccTLD with the degree of freedom that .au, .ca, .uk and .nl are
privileged to enjoy. I consider it highly unlikely that sovereign
governments will permit a government department to join an association in
the US (or any other country for that matter).<br><br>
</dl>
<dd> <br>
<dd>They won't have to, to do what they do in ICANN today.<br>
<dd> <br>
<dd>The suggestion is they might have to if they want to take part in
exercising the accountability powers set out in our report that's going
for public comment.<br>
<dd> <br>
<dd>That said, there's a bit of an objective legal question here - which
is whether the decisions of these uninc associations can be forced to
take account of the views expressed in the ICANN bodies they shadow in
making their decisions. If they can (which I would analogise to the ccNSO
taking on board the views of non-member ccTLDs - and so I assume it is
possible), much of this debate becomes moot.<br>
<dd> <br>
<dd> <br>
<dd>Finally -- I do think this is a really useful and constructive
discussion. As someone who is warm to the member approach, but who sees
huge benefits if we can manage a "no structural change"
outcome, this is just the convo we need to have.<br>
<dd> <br>
<dd>cheers,<br>
<dd>Jordan<br>
<dd> <br>
<dl>
<dd>At Large<br>
<dd>I don’t know the answer to this but it strikes me that the
structure may also be problematic for At Large community as opposed to
ALAC. On that one over the ALAC folks to comment.<br>
<dd>There’s more but I'm rushing for my flight now. Hope this gives you
a flavour.<br><br>
<dd> <br><br>
<dd> <br><br>
<dd>Cheers,<br><br>
<dd> <br><br>
<dd>Chris<br>
<dd> <br>
<dd>On 21 Apr 2015, at 20:46 , Chris Disspain <ceo@auda.org.au>
wrote:<br><br>
<br>
<dd>Hi Keith,<br><br>
<br>
<dd>Thanks for the below. You ask a valid question and Kavouss has sent
me an email asking the same. I will respond in detail in the next 7
hours or so. <br><br>
<dd>Chris Disspain<br>
<dd>CEO - auDA<br><br>
<dd>On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek@verisign.com>
wrote:<br>
<dl>
<dd>Thanks Chris, no apologies necessary...this is exactly the kind of
dialogue needed to advance our work. <br>
<dd> <br>
<dd>Can you be more explicit about the "significant number of
sacrifices that would need to be made in a membership scenario" that
ccTLDs face? Particularly if any are unique to ccTLDs? <br>
<dd> <br>
<dd>Sacrifices may be needed (including from the Board) if we are to
accomplish the community's broader goal of ensuring the ICANN Board and
Staff are truly accountable to the ICANN community for the next decade.
As such, it would be good to know, as early as possible, what those
sacrifices might be. <br>
<dd> <br>
<dd>In simple terms, I agree that determining what can and cannot be
accomplished within the existing structure is a worthwhile exercise and
will help to inform the community. <br>
<dd> <br>
<dd>Based on our work and the relevant independent legal analysis to
date, it appears to me that the current construct has significant gaps
and shortcomings and won't deliver on our goals, but I support seeking
further advice on the topic from our independent legal advisors.<br>
<dd> <br>
<dd>Thanks and regards,<br>
<dd>Keith<br><br>
<dd>On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo@auda.org.au>
wrote:<br>
<dl>
<dd>Thanks Keith. <br>
<dd> <br>
<dd>I apologise for pinging back and forth on this but I hope the list
will appreciate that it as an indication of how important auDA believes
this point is. <br>
<dd> <br>
<dd>As I said on the CCWG call last week, I have serious concerns about
the viability of the lawyers' recommended structural changes (at least
from a cc point of view) and want to be crystal clear about what we can
do or cannot do within the current structure.<br>
<dd> <br>
<dd>For a ccTLD there are a significant number of sacrifices that would
need to be made in a membership scenario and I don't believe the cc
community can decide whether those sacrifices are worth making unless we
can weigh them against what we would be able to achieve using the current
structure. <br>
<dd> <br>
<dd>I think that is essential that our output to the community contains a
clear explanation of what the status quo can achieve. If it does not then
IMO it is impossible to judge the other scenarios. <br>
<dd> <br>
<dd>I appreciate your second para and, as a lawyer, I know that time for
a response is required. I also appreciate the time constraints under
which we are operating. But we will lose more time if the result of our
document is a series of questions about whether there really is a need to
make the significant changes being recommended. <br>
<dd> <br>
<dd>In simple terms 'not nearly enough' is not an acceptable response.
How can I know that "it" is not nearly enough unless I know
what "it" is?<br>
<dd> <br>
<dd>Chris Disspain<br>
<dd>CEO - auDA<br><br>
<dd>On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek@verisign.com>
wrote:<br>
<dl>
<dd> <br>
<dd>Chris, <br>
<dd> <br>
<dd>I believe the answer to your question regarding the "no change
scenario" and "what the current configuration can achieve"
is, "Not nearly enough." <br>
<dd> <br>
<dd>That said, I think it's a reasonable question and it should be
referred to the CCWG's lawyers and they should be permitted reasonable
time to consider and respond.<br>
<dd> <br>
<dd>Regards,<br>
<dd>Keith<br>
<dd> <br>
<dd> <br><br>
<dd>Sent from my iPhone<br><br>
<dd>On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo@auda.org.au>
wrote:<br>
<dl>
<dd>Greg,<br>
<dd> <br>
<dd>Thanks. At the risk of repeating myself, whilst I understand what you
are saying, it is precisely the no change scenario that I am seeking
clarity on. I accept that the current configuration may not be "a
very good vehicle for many of the enhanced powers" but I want
clarity on what the current configuration CAN achieve. I don't
believe we have that yet. <br><br>
<dd>Chris Disspain<br>
<dd>CEO - auDA<br><br>
<dd>On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc@gmail.com>
wrote:<br>
<dl>
<dd>Chris,<br>
<dd> <br>
<dd>The simple answer is that the SOACs as currently configured are not a
very good vehicle for many of the enhanced powers we seek. Once you make
them into members and give them legal personhood everything else becomes
much easier. <br>
<dd> <br>
<dd>However, you assumed no change to the SOACs, which made the answers
much harder.<br>
<dd> <br>
<dd>Greg<br><br>
<dd>On Tuesday, April 21, 2015, Chris Disspain <ceo@auda.org.au>
wrote:<br>
<dd>Greg, All,<br>
<dd> <br>
<dd>With respect, I think we are overcomplicating the issue. I simply
want to gain a base line for the discussion about any changes
necessary to achieve what we want. We agreed on jurisdiction that
if we can get acceptable escalations and remedies without changing
jurisdiction then we should leave well alone for now, I think we should
apply the same principle here. I am clear what the lawyers recommend we
do BUT I am not clear about what we can do or what compromises we need to
make if we were to maintain the current structure. I think that is a key
part of our deliberations. <br><br>
<dd> <br><br>
<dd> <br><br>
<dd>Cheers,<br><br>
<dd> <br><br>
<dd>Chris<br><br>
</dl>
</dl>
</dl>
</dl>
</dl>
</dl>
<dd>-- <br>
<dd>Jordan Carter<br><br>
<dd>Chief Executive <br>
<dd>InternetNZ</b><br><br>
<dd>04 495 2118 (office) | <a href="tel:%2B64%2021%20442%20649">+64 21
442 649</a> (mob)<br>
<dd>jordan@internetnz.net.nz <br>
<dd>Skype: jordancarter<br><br>
<dd>A better world through a better Internet <br>
</i>
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-- <br>
Jordan Carter<br>
Chief Executive, InternetNZ<br><br>
+64-21-442-649 |
<a href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a><br>
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