[Area 4] Business Constituency Stress Test #4

[Eric Brunner-Williams]

Malcolm,

To repeat: standard incorporation language (in California, Delaware, New 
York, ...) contains phrasing of the form "any lawful purpose".

and,

To paraphrase: the Corporation Board initiated an effort which 
envisioned assistance to gTLD applicants from developing economies, an 
effort to which many Constituencies (though not, as far as I recall, the 
Business Constituency) and several Advisory Committees contributed.

I've no opinion on what the Corporation may, or may not do with its 
capital and human assets, though I think it prudent that the Corporation 
make the benefits of the IANA Function extend beyond its early adopters.

For reasons I'm unaware of, the Business Constituency offered repetition 
of the paraphrased activity as a "stress test" case that could 
contribute to the development of the larger CCWG-Accountability task. As 
the activity is lawful, and has previously been undertaken by the 
Corporation with the active support of  most of the community, I'm at a 
loss how Business Constituency Stress Test #4, original and first 
restatement forms, could be informative.

I understand your comment about writing restrictive Bylaws, but the task 
of WS4 is to find contingencies or scenarios that make the larger 
CCWG-Accountability contributors aware of areas in the existing, or 
hypothetical accounting mechanisms, that need improvement, not writing 
Bylaws.

Sincerely,

Eric Brunner-Williams
Eugene, Oregon



On 1/11/15 1:23 PM, Malcolm Hutty wrote:
> 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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>