[Ccwg-auctionproceeds] Wrt (not) lobbying

Mon Mar 27 18:44:16 UTC 2017

Thanks for the continuing discussion on this.

As Mathieu noted, lobbying in and of itself is not a ³forbidden² activity
for ICANN.  However, there are significant limits on the percentages of
ICANN¹s revenue that can be used on lobbying activity.  If ICANN exceeds
that percentage, ICANN can lose it¹s 501c3 status.  Under the 501c3 rules,
it does not matter if ICANN is directly supporting those lobbying
activities; any funds that come from ICANN that are used for lobbying
activities are calculated as part of ICANN¹s percentage, whether or not
ICANN controlled those lobbying activities.

The question here isn¹t whether any lobbying activities could be deemed to
be within ICANN¹s mission.  Nor is the bar on usage of the auction funds
for lobbying activities any sort of judgment on the value or need for
lobbying activities in this space.  It is a recognition that the use of
the auction proceed funds to support lobbying activities places ICANN at
risk of losing its 501c3 status, even if that lobbying activity is within
ICANN¹s mission and aligned with ICANN¹s core values.

‹ 
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631

On 3/27/17, 8:22 AM, "ccwg-auctionproceeds-bounces at icann.org on behalf of
James Gannon" <ccwg-auctionproceeds-bounces at icann.org on behalf of
james at cyberinvasion.net> wrote:

>Important to remember that lobbying is a strictly defined and controlled
>activity and not subject to our interpretation but to that of the IRS and
>the reason that ICANN is restricted is not out of an arbitrary choice but
>a strict rule under the IRS of what a 501c3 non profit can and cannot do.
>
>
>
>=James
>
>
>
>-----Original Message-----
>
>From: ccwg-auctionproceeds-bounces at icann.org
>[mailto:ccwg-auctionproceeds-bounces at icann.org] On Behalf Of Daniel
>Dardailler
>
>Sent: Monday, March 27, 2017 3:29 PM
>
>To: Mathieu Weill <mathieu.weill at afnic.fr>
>
>Cc: ccwg-auctionproceeds at icann.org
>
>Subject: Re: [Ccwg-auctionproceeds] Wrt (not) lobbying
>
>
>
>Hello Mathieu, all
>
>
>
>Thanks for the pointers, especially the ICANN Lobbying Disclosures &
>Contribution Reports. If my understanding is right, they show that some
>lobbying areas are already OK, and that the set of areas can evolve over
>time.
>
>
>
>Looking at the various documents, it's clear that the qualifier "attempt
>to modify legislation" can be subject to interpretation.
>
>
>
>Our charter even says "Lobbying does not include public education about
>issues", which to me, clearly includes public policy makers as a
>potential audience (it includes everybody when it's online public/free
>and transparent education and outreach). This would also cover grass-root
>lobbying, aka indirect lobbying, i.e. when you don't talk to policy
>makers directly but you hope that your public audience will learn from
>you and influence the policy work in the end.
>
>
>
>The important bit is all that IMO is not so much if you talk directly to
>policy makers or not, but if when doing so, you represent a political
>party, or a corporate interest, vs. you represent a public interest
>position, especially one that involves Internet technicalities.
>
>
>
>Maybe we should look at some recent listing  of core Internet values
>(e.g. done at IGF) to identify which "lobbying" areas are potentially
>aligned with the ICANN core value of "preserving and enhancing the
>operational stability, reliability, security, and global interoperability
>of the Internet.".
>
>
>
>
>
>
>
>On 2017-03-24 11:42, Mathieu Weill wrote:
>
>> Daniel, All,
>
>> 
>
>> Reviewing the slides provided by ICANN Legal
>
>> 
>>(https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org
>>_display_CWGONGAP_Legal-2Band-2BFiduciary-2BCons&d=DwIGaQ&c=FmY1u3PJp6wrc
>>rwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imoh
>>zko&m=roPF-tYhNVs20qAd27K78QEVuC0f1JsEoozRbYYLdYA&s=LUJyWFAKGTOkiROjLaCJI
>>rc-nDAyRx8JRC2TE0Xx79w&e=
>
>> trai
>
>> nts+Related+Materials?preview=/64073737/64073741/DT%20for%20Auction%20
>
>> nts+Related+Proc
>
>> eeds%20-%20CCWG%20Legal%20Presentation.pdf ) on slide 13, it seems
>
>> that the statement that "lobbying is a forbidden activity for ICANN"
>
>> is not entirely accurate.
>
>> 
>
>> The slide recognizes that ICANN engages in some lobbying activities
>
>> (more about it is disclosed here :
>
>> 
>>https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resour
>>ces_pages_lobbying-2Ddisclosures-2Dcontributio&d=DwIGaQ&c=FmY1u3PJp6wrcrw
>>ll3mSVzgfkbPSS6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzk
>>o&m=roPF-tYhNVs20qAd27K78QEVuC0f1JsEoozRbYYLdYA&s=lCZfYAFba1Ij1XtzcQpujtT
>>ZMXLpXSeEaHxHJrTnmCc&e=
>
>> ns-2
>
>> 015-11-18-en) and mentions a requirement from our CCWG Charter against
>
>> providing funds in support of attemps to influence legislation.
>
>> 
>
>> The relevant section of our Charter is quoted below, from the "scope"
>
>> section 
>>(https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org
>>_display_CWGONGAP_CCWG-2BCharter&d=DwIGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS
>>6sJms7xcl4I5cM&r=w1jlqVWntmqtI5dedIDLQ6uBxH_Jh-uBee_4imohzko&m=roPF-tYhNV
>>s20qAd27K78QEVuC0f1JsEoozRbYYLdYA&s=hHDumrVm8pHSbarIiLT8ImHzKiGxza_X-n5hi
>>E220XI&e= ) :
>
>> 
>
>> "To align with requirements imposed to maintain ICANN¹s U.S. tax
>
>> exempt status, the CCWG must include a limitation that funds must not
>
>> be used to support political activity/intervening in a political
>
>> campaing public office[2] or attempts to influence legislation[3]. The
>
>> definitions of the limitations that are imposed to meet U.S. tax
>
>> requirements must be applied across all applicants, and not only those
>
>> from or intending to use the funds within the U.S. These requirements
>
>> will apply to comparable activities across any location where
>
>> applicants are located or intend to use the funds."
>
>> 
>
>> So my interpretation would be that organizations who engage in
>
>> lobbying activities (such as the examples given by Daniel) would not
>
>> be ruled out as a matter of principle, but should commit and ensure
>
>> that any funds they would receive from the ICANN Auction Proceeds
>
>> would not be used in lobbying or political funding activities.
>
>> 
>
>> Would that be correct ?
>
>> 
>
>> Best,
>
>> Mathieu
>
>> 
>
>> -----Message d'origine-----
>
>> De : ccwg-auctionproceeds-bounces at icann.org
>
>> [mailto:ccwg-auctionproceeds-bounces at icann.org] De la part de Daniel
>
>> Dardailler Envoyé : jeudi 23 mars 2017 18:54 À :
>
>> ccwg-auctionproceeds at icann.org Objet : [Ccwg-auctionproceeds] Wrt
>
>> (not) lobbying
>
>> 
>
>> Hello all
>
>> 
>
>> In the legal slides, lobbying is pointed out as a forbidden activity
>
>> for ICANN and is loosely defined as "attempts to influence
>
>> legislation".
>
>> 
>
>> I'd like to understand exactly what that means.
>
>> 
>
>> For instance, both IETF and W3C have been active in various European
>
>> official fora (parliament, commission, national governments) to change
>
>> the old EU legislation wrt public procurement so that procurers be
>
>> allowed to reference our standards directly (e.g. IPV6 or HTML).
>
>> This is clearly about legislation, and it's more than an attempt,
>
>> since we eventually succeeded (look for the EU Multistakeholder
>
>> Platform for details).
>
>> 
>
>> Is this sort of policy oriented work to make the Internet and the Web
>
>> technologies more "official", and therefore better deployed, without
>
>> fragmentation, considered lobbying ?
>
>> 
>
>> Let's take another example. Suppose that some governments want to pass
>
>> a brain-damaged legislation related to IP routing. Shouldn't ICANN be
>
>> allowed to inform the public authority about the risks of doing just
>
>> that ? If ICANN doesn't do it, who will ?
>
>> 
>
>> This is not a rhetorical case, every year or so, I get alerted by some
>
>> advocacy groups that "deep linking" is about to become illegal
>
>> somewhere on the planet (a deep link is just a link to a page "inside"
>
>> another site, bypassing their "home" page) in order to protect some
>
>> publisher business.
>
>> Such an approach would undermine a fundamental piece of the Web
>
>> architecture: freedom to link anywhere, and if we, the technical
>
>> community, don't explain that point to policy makers, who will ?
>
>> 
>
>> There are dozens of public policy topics that are directly related to
>
>> the Internet and the Web. They are all technical in nature of course
>
>> and they only exist because of the net, because of us. As it happens,
>
>> these topics are not very "hot" in the technical community, mostly
>
>> because of their "policy/legal" flavor (not geek enough), so it's
>
>> already difficult to find resources to represent our point-of-view.
>
>> 
>
>> My point is: at this point in time in Internet history, with lots of
>
>> legislators trying to control the net without much of a clue of how
>
>> things work, I think it would be a strategic mistake from the Internet
>
>> technical community to self-censored itself in these debates.
>
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>> _______________________________________________
>
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>
>> Ccwg-auctionproceeds at icann.org
>
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>
>
>
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