[Ccwg-auctionproceeds] Fwd: [CORRESPONDENCE] Request for input from ICANN Board - CCWG-AP

Samantha Eisner Samantha.Eisner at icann.org
Mon Oct 22 10:32:43 UTC 2018

With apologies that I am not able to attend today's meeting, regarding the discussion of entity status, I wanted to remind the CCWG of the constraints that we identified in the Legal & Fiduciary Constraints memo developed early in this process, which specifies some objective legal requirements to support grant making.

The relevant sections are copied below: https://community.icann.org/download/attachments/58730906/May%202016%20-%20Note%20to%20Auction%20Proceeds%20Charter%20DT%20re%20legal%20and%20fiduciary%20principles-UPDATED.doc?version=1&modificationDate=1466697425000&api=v2

a.	Considerations for grants to organizations

When providing grants to another 501(c)(3) organization that operates as a public charitable organization,  once alignment is confirmed to ICANN’s mission, the level of administrative needs to confirm the entity is minimal.  This is in contrast to a for-profit organization, or another form of organization that is not recognized as equivalent to a 501(c)(3).  If ICANN were directed to make grants to a for-profit entity, for example, or an IGO, NGO, or a foreign non-profit, the administrative burden on ICANN to assure compliance with its obligations rise.  

However, reliance on 501(c)(3) status alone as a demonstration of eligibility would serve to exclude almost any foreign entity from being eligible to receive a portion of the auction proceeds.  Requiring a specific U.S.-based tax status is not a desirable or acceptable eligibility requirement.  This is not necessary.  

To the extent that the auction proceeds are requested to financially support an organization that does not have 501(c)(3) status, due diligence to ensure that only incidental private benefits will result (such as payment of reasonable employment salaries) will be required prior to providing that support.  That due diligence could include, for example, seeking a clear description of the public benefits that will be generated by the activity, and the circumstances and means through which those benefits are expected to be achieved.  It could include seeking of financial data or other information that is appropriate in the circumstance. 

There are other ways to establish eligibility as well. foreign non-profits or NGOs are eligible to obtain affidavits or opinions of counsel that they operate as an equivalent of a 501(c)(3) public charity.  With the proper documentation, ICANN may rely on that affidavit or opinion to demonstrate the public benefit and lack of private benefit, therefore not needing to engage in detailed due diligence. 

The DT could consider whether the Charter should include any guidance to the CCWG on issues of prioritizing potential recipients based on the resources that would be needed to evaluate their eligibility based on the private benefit restriction. The CCWG could still consider this item even if not specified in its Charter.

b.	Recommended Prohibition on Grants to Individuals

The prohibition on private benefit typically results in an exclusion of grants/payment of funds directly to individuals, because there is little possibility of performing the proper review over the use of those funds to make sure that they went towards service of ICANN’s charitable purpose, as opposed to enriching the individual.  This does not mean that the funds cannot be provided to an organization that provides direct services to individuals, but for the purposes of developing eligibility criteria, we recommend that a restriction be included that prohibits ICANN from providing individual grants.

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

From: Ccwg-auctionproceeds <ccwg-auctionproceeds-bounces at icann.org> on behalf of Vanda Scartezini <vanda at scartezini.org>
Sent: Sunday, October 07, 2018 1:35 PM
To: Alan Greenberg; John R. Levine; Marilyn Cade
Cc: ccwg-auctionproceeds at icann.org
Subject: Re: [Ccwg-auctionproceeds] Fwd: [CORRESPONDENCE] Request for input from ICANN Board - CCWG-AP

I also believe nothing will be impede AC/SOs to apply if compliant with the requisites. They are not departments/ divisions of ICANN. What will refrain the applicant is the involvement of any of us working in the Auction proceeds as per our conflict of interest statement.

Vanda Scartezini
Polo Consultores Associados
Av. Paulista 1159, cj 1004
01311-200- Sao Paulo, SP, Brazil
Land Line: +55 11 3266.6253
Mobile: + 55 11 98181.1464
Sorry for any typos.

On 10/7/18, 16:26, "Ccwg-auctionproceeds on behalf of Alan Greenberg" <ccwg-auctionproceeds-bounces at icann.org on behalf of alan.greenberg at mcgill.ca> wrote:

    At 07/10/2018 11:00 AM, John R. Levine wrote:
    >>BUT, For later discussion : am not sure what Bd thinks it is saying
    >>re whether or what funding an SO/AC community can apply. NONE of
    >>the SO/AC/constituencies are legally affiliated w ICANN.
    >I believe the question is whether the SO or AC itself could ask for
    >money, e.g., the SSAC asks for money to study some security issue or the GNSO
    >asks for money for some study about perceptions of new TLDs.
    >I don't think anyone considers the members of an SO or AC to be
    >inherently conflicted.

    Correct. An AC, SO or SO Council is a creature of the ICANN Bylaws
    and if it were to apply, it is really ICANN applying. But and ALS for
    the ALAC or member of the GNSO (through one of its constituent
    parts), or a ccTLD, could apply.


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