[Acct-Legal] Fwd: [WP1] Comments and questions on legal docs

Wed Apr 15 14:28:28 UTC 2015

Legal Subteam:

We need to consider at our meeting whether the note below should be
formally referred to our counsel for response.

Greg Shatan
---------- Forwarded message ----------
From: Samantha Eisner <Samantha.Eisner at icann.org>
Date: Tue, Apr 14, 2015 at 9:58 PM
Subject: [WP1] Comments and questions on legal docs
To: "accountability-cross-community at icann.org" <
accountability-cross-community at icann.org>, "wp1 at icann.org" <wp1 at icann.org>

 I have a group of questions, and share this with WP1 as well as the
broader CCWG as well for consideration.  Some of them are legal issues,
some of them are more accountability related issues for CCWG consideration
now that we have some guidance from the lawyers.

 To help illustrate my concerns, I’ve followed Robin’s Chart format and
created two of my own, (though my excel powers clearly are nowhere near
hers!).  The first chart is based off of the slides that were presented on
today’s CCWG call, in particular the membership and the delegate slides.  I
have removed reference to the TLG as it no longer has a role in appointing
Board members and is itself a collection of external groups.  I have also
included the ALAC, which was not fully referenced on those slides as it is
the At-Large Community that is the body that appoints to the Board, not the
ALAC, therefore I think we need to look at how the ALAC is considered
within this process.

 Using the same 6 powers that Robin highlighted in her chart, I then took
those powers and identified how I understand the powers to be exercised by
the different Sos and Acs when relying on a membership or designator model,
to get a better sense of where the groups that are formally identified as
members or designators could act, which then raises the questions of what
happens to those groups that are not identified as members or designators.
This seems to me to be a key area where we need to focus – how does the
move to a different structure actually impact the multistakeholder actors
within ICANN?

 Some of the key questions that I propose we need to consider are:

   1. If there is a move to member organization, what does it really mean
   in terms of exercising of community powers if some Sos/Acs are members and
   some aren’t?
   2. If there are members/non-members how much of the relationships among
   the Sos and Acs in exercising community powers would be based in contract?
   Would non-members need to enter into contracts too, or would their powers
   just be expressed within the Bylaws or Articles of incorporation?
   3. If contracts are required, wouldn’t that also require the formation
   of some sort of legal entity (unincorporated association or otherwise) to
   enter into the agreements, even among non-members?  Who are the parties to
   these contracts?
   4. Would each of the groups that are members have be subject to
   California law once they form as an unincorporated association (or other
   legal entity)?  Is this viable across the ICANN community?
   5. How is a group such as the At-Large Community to be recognized as an
   unincorporated association?  If the GAC wanted to be a member, is that
   something that is even possible for it to do?  Or the ccNSO, keeping in
   mind the concerns that Chris Disspain raised on our call?  Or any other
   group?  Is this feasible?
   6. What are the mechanisms that the members will use to be accountable
   to each other, particularly when there is no fiduciary duty and the
   expectation of acting in personal interest?
   7. Particularly if there are members/non-members, what accountability
   mechanisms will be in place to make sure that the members don’t act to the
   disadvantage of non-members?  (Examples: blocking a budget that includes
   funds for the performance of the IANA functions in service to the protocol
   parameters community, assuming the IETF is not a member; blocking a board
   action that is intended to enact a non-member advisory committee’s advice)
   8. Where does the NomCom belong?  Is it appropriate for a group that
   changes composition on a yearly basis to be a member?  Is it a collective
   association of all entities that currently appoint delegates to the
   NomCom?  Does that give some members more say that others if there are
   members/non-members to ICANN (Ex: GNSO appoints multiple delegates through
   its Sgs and Constituencies – would those groups get to impact both NomCom
   exercise of membership as well as GNSO exercise of membership?)
   9. To what extent does the designator model rely on the formation of
   associations and contracts to achieve the stated reforms?

 The second sheet (membership rights) are the enumerated powers of members
that were set forth in Sidley’s 12 April memo to the CCWG.  Understanding
that each of these can be applicable to members, how are they applicable to
non-members?

 There are likely additional questions, but these are some of the hallmark
ones that stand out to me if we look at how structural changes could
actually be applied to ICANN, and not just look at it from the pure legal
view of structures that would empower the anticipated solutions.

 Once we understand these a bit more, then we can turn to the more
fundamental questions of whether the positives and negatives of what can be
achieved through the proposed structural changes make those changes the
best ways to achieve the reforms.  That can include issues of practicality
of implementation, time for implementation, the ability for less complex
measures to achieve many goals (such as developing robust Bylaws revisions)
while identifying that if more major changes such as the systemic move to
membership is seen as appropriate after robust community debate, that the
Board would be obligated to take that recommendation on (similar to how WS2
will be treated).

 Thanks for your consideration of these issues.

 Best,

 Sam

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