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

Erika Mann erika at erikamann.com
Mon Oct 22 10:43:43 UTC 2018

 Received and noted.

Thank you Sam, we will miss you.

Erika Mann
Co-Chair CCWG AP
erika at erikamann.com

On Mon, Oct 22, 2018 at 12:32 PM, Samantha Eisner <Samantha.Eisner at icann.org
> wrote:

> 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.
>     >
>     >R's,
>     >John
>     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.
>     Alan
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