[Area 4] Business Constituency Stress Test #4

[Malcolm Hutty]

Eric,

Excuse me for intervening in what reads like a back-and-forth with 
Steve,
but if I understand your message below correctly then I would be worried
by what it implies.

Are you saying that ICANN can properly engage in "any lawful purpose"?
And that to those ends, it may employee registrations fees to "fund
grants to developing nations or other worthy causes"?

I am no lawyer, but this strikes me as going considerably beyond the
mandate set out in the existing bylaws, namely "to coordinate, at the 
overall level,
the global Internet's systems of unique identifiers, and in particular
to ensure the stable and secure operation of the Internet's unique 
identifier systems"

Does that fundamental mandate not legally constrain ICANN's scope?

If ICANN is indeed currently legally permitted to range as widely as
you seem to be implying, I would suggest that the bylaws need to be
strengthened considerably so as to prevent that, and keep ICANN within
the narrow technical function that I believe the community intends.

If the ICANN Board is legally capable of sending the company in pursuit 
of
"any lawful purpose", and applying its funds to achieve those ends, then
it is very likely that sooner or later it will engage in activities that
lie very far from commanding a community consensus. Would the community
be capable of restrain a Board set upon such a path? If not, I would
say that that would constitute a serious failure of accountability.

So, if I have misunderstood you, then I don't understand your challenge 
to the
BC stress tests, which would appear valid. If I understand you 
correctly,
my worry would be that the BC tests, far from being redundant, are 
actually
too narrowly drawn.

Kind Regards,

Malcolm Hutty.

On 2015-01-11 02:48, Eric Brunner-Williams wrote:
> Steve,
> 
>  Members of the Business Constituency are aware that standard
> incorporation language (in California, Delaware, New York, ...)
> contains phrasing of the form "any lawful purpose".
> 
>  Members of the Business Constituency are also aware that the
> Corporation Board " at its March 2010 meeting in Nairobi, Kenya,
> passed resolutions recognizing the importance of an inclusive New gTLD
> Program, and requesting stakeholders to form a Working Group to
> develop sustainable support needy applicants for new gTLDs."
> 
>  Yet the language of the 4th Business Constituency "Stress Tests" [1]
> posits the Corporation's use of "registration fees to fund grants to
> developing nations or other worthy causes" and further declares this
> hypothetical use by the Corporation of its funds as an "expands[ion
> of] scope beyond its limited technical mission".
> 
>  In your revised language this restriction is expanded from the
> Corporation's recurring revenues to include its recurring revenues and
> its reserves.
> 
>  Without commenting on the rational contained in both the original and
> your revised language, I must ask, how can an accountability issue
> arise from something that (a) falls within "any lawful purpose" and
> (b) has been institutionalized by the Corporation as a consequence of
> the Board's 2010 resolution?
> 
>  Thanks in advance for your clarification.
> 
>  Eric Brunner-Williams
>  Eugene, Oregon
> 
>  [1] http://bizconst.org/stresstests
> 
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> Ccwg-accountability4 at icann.org
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             Malcolm Hutty | tel: +44 20 7645 3523
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