[CWG-Stewardship] [CWG-RFP3] CCWG California Law Response

Tue Feb 10 00:59:12 UTC 2015

Hi Kieren,

Thanks for you considered reply. And thanks for asking the question and being constructive.

> Of course, it is in your power Chris to dispel this speculation today. You can simple state on the record that you believe the ICANN community should be granted the final decision-making power and that the Board should be required to follow its decisions. 

I think that statement would be a tad simplistic. For example, what is 'the community’? All decisions? And I think we need to be clear whether we mean ICANN accountability generally or something specific to IANA.

But, speaking entirely personally, let me say this:

On the IANA function I believe that it is acceptable for there to be a mechanism under which the customers of IANA (and I mean the customers, not 'the community’) can, after a series of escalation mechanisms have been exhausted, have the IANA function moved to a different operator.

On accountability generally, I believe that there should be a mechanism in place under which (after a series of escalation mechanisms) the SOs and ACs acting together (with agreed levels of vote being consensus) can ’sack’ the Board. 

Cheers,

Chris

On 10 Feb 2015, at 05:08 , Kieren McCarthy <kierenmccarthy at gmail.com> wrote:

> I wasn't really responding as a journalist, I was emailing as someone who was ICANN staff support on not one but two previous accountability reviews, who has been interviewed for two more accountability reviews, and who has closely followed as an ICANN community member the remaining three accountability reviews.

> 
> Saying that ICANN Corporate will fight against any changes that dilutes its power is only speculation if you consider saying that the GNSO will split along contracted/non-contracted party lines is speculation, or that the opening ceremony will have speeches from ICANN's chair and the local telecoms minister is speculation.

> 
> When the same thing happens repeatedly over long stretches of time and in response to different inputs, it ceases to be speculation and becomes inevitable.
> 
> Or, to look at it differently, I can point to literally dozens of statements where ICANN staff, Board members and now outside legal counsel have said that it is not possible, or advisable, or practical, or necessary, or legal (!) to make changes whose main import would be to reduce the power of the staff and Board.
> 
> I have yet to see one statement by those same people in support of handing over ultimate decision-making power to any one person, group, organization or thing.
> 
> Of course, it is in your power Chris to dispel this speculation today. You can simple state on the record that you believe the ICANN community should be granted the final decision-making power and that the Board should be required to follow its decisions. 
> 
> If the ICANN Board agrees that this is the correct approach, then I am pretty sure we will find the whole process changes overnight and the legal memos becomes significantly less certain about what California law says. 
> 
> 
> 
> 
> Kieren
> 
> 
> On Mon, Feb 9, 2015 at 8:11 AM, Chris Disspain <ceo at auda.org.au> wrote:
> Kieren,
> 
> With all due respect;
> 
>> Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
> 
> 
> 
> …that is not a fact. It is at best speculation. It is possibly journalistic licence. It is, at its worst, intentionally mischievous and misleading. 
> 
> 
> 
> 
> Cheers,
> 
> 
> 
> Chris
> 
> 
> On 10 Feb 2015, at 02:27 , Kieren McCarthy <kierenmccarthy at gmail.com> wrote:
> 
>> I'm a little surprised that you are all surprised by the contents of ICANN's lawyers' memo.
>> 
>> This has been the position of Jones Day for years and it has been used repeatedly to undercut community recommendations for better accountability.
>> 
>> The big difference this time around is that we have it in black and white, and publicly, before the final recommendations have been made. 
>> 
>> In the past, the legal advice has typically only made it into the Board's hands after the recommendations have been provided. They have then been dropped.
>> 
>> Another fact from this: ICANN corporate is going to fight all proposed changes that see it lose any kind of power. And the Board will likely feel obliged to follow the legal advice of its lawyers over a third party.
>> 
>> So the question becomes: how do you force ICANN Corporate to shift its position *before* the process is closed off? 
>> 
>> Because if you leave that detail until after (call it 'implementation'), it will never happen.
>> 
>> 
>> Kieren
>> 
>> 
>> Kieren
>> 
>> 
>> -
>> [sent through phone]
>> 
>> 
>> On Sun, Feb 8, 2015 at 9:04 PM, Maarten Simon <maarten.simon at sidn.nl> wrote:
>> 
>> Thank you Greg for this response. I indeed hope that Californian law will proof to be more flexible than suggested by the advice because I am not looking forward to a discussion on all possible jurisdictions worldwide that could provide for what we need. 
>> 
>> Maarten
>> 
>> From: Greg Shatan <gregshatanipc at gmail.com>
>> Date: Monday 9 February 2015 11:29
>> To: Graeme Bunton <gbunton at tucows.com>
>> Cc: "cwg-stewardship at icann.org" <cwg-stewardship at icann.org>, "cwg-rfp3 at icann.org" <cwg-rfp3 at icann.org>
>> Subject: Re: [CWG-Stewardship] CCWG California Law Response
>> 
>> Graeme,
>> 
>> May I gently suggest that you are treating this as a definitive legal opinion by stating the two outcomes you think it suggests. 
>> 
>>  I think the outcome it suggests is that we need independent legal counseling. I use t he word "counseling" and not "advice" on purpose.  A good counselor solves a client's problems and protects the client from risk.  A document like the one in question is at best a jumping off point for such counseling, which is by definition interactive and iterative in nature.
>> 
>> That said, it's entirely possible that, even after robust attempts at problem-solving, that the proposal that best meets the needs of the global multistakeholder community could involve an external-to-ICANN option or could only be feasible under the laws of a different jurisdiction.
>> 
>> But we are far, far away from this.
>> 
>> I'll admit that, in my private practice, there are times I feel that I have to walk clients through fairly negative steps in terms of the legal environment, risks and worst-case scenarios.  But then the real work starts (I might even say "the fun begins" but that sounds kind of pathetically wonky), starting with "But this is what we can do..." and tell them how we will meet their needs.  Of course, there are times when you need to tell clients "No," but most of the time, it should be "No, but..."  It's the really rare case where you say "No.  Just No." (or how do you look in an orange jumpsuit...).  Even in those cases, you try to find the client a reasonable solution to as many of their key points as possible.
>> 
>> So, rather than looking at this as a conversation stopper, it will be more fruitful to view it as a conversation starter.
>> 
>> Greg
>> 
>> On Monday, February 9, 2015, Graeme Bunton <gbunton at tucows.com> wrote:
>> I read it with some interest, and as was pointed out by Milton and others in the Accountability WG, it is legal that advocates from and for a particular perspective. Which is of course fine, so long as we don't treat this as definitive legal opinion for our purposes.
>> 
>> To me,  it seems to suggest either of two outcomes:
>> - The re-domiciling of ICANN to a jurisdiction that would allow the community to assert itself upon the board
>> - Some version of the external to ICANN option we've been discussing
>> 
>> Graeme
>> 
>> On 2015-02-09 1:33 AM, Milton L Mueller wrote:
>>> People who read this should keep in mind that Jones Day is ICANN’s lawyer and as such has an interest in, if not an obligation to, interpret or represent the law in ways that serve the interests of its client.
>>> 
>>>  
>>> 
>>> From:cwg-rfp3-bounces at icann.org [mailto:cwg-rfp3-bounces at icann.org] On Behalf Of James Gannon
>>> Sent: Sunday, February 8, 2015 5:11 AM
>>> To: cwg-stewardship at icann.org
>>> Cc: RFP3
>>> Subject: [CWG-RFP3] CCWG California Law Response
>>> 
>>>  
>>> 
>>> I believe that the CWG should be aware of the response from Jones Day to the CCWG’s questions of California law noted below while we are considering options and they will feed into the acceptability of both models under discussion:
>>> 
>>> https://mm.icann.org/pipermail/accountability-cross-community/attachments/20150208/ed62a5b3/AccountabilityQuestionsforCCWG-fromJonesDay-0001.pdf
>>> 
>>> I have copied an excerpt extracted and notes on the domainmondo article below: http://www.domainmondo.com/2015/02/icann-lawyers-nix-icann-accountability.html
>>> 
>>>  
>>> 
>>> >>Initial Responses to the Community Working Group’s California Law Questions, 7 February 2015,from Jones Day (ICANN's lawyers) to questions submitted by the Cross Community Working Group (CCWG).... (excerpts below, full responses here)--
>>> 
>>> Jones Day: “…. It is important to note that, even in the context of members and delegates, California law provides that the activities and affairs of ICANN still must be conducted and all corporate powers must be exercised by or under the direction of the Board. Accordingly, members and delegates cannot force the Board to take a certain action or overturn a Board decision. The rights of members and delegates under California law are limited and are more closely associated with approval rights over specified actions, rather than the right to second guess or supersede Board action or inaction. For example, members would only be entitled to approve the Board’s budget and would not be able to propose or approve a separate budget. As with any new structure, adding “members” or “delegates” raises a considerable number of governance issues, including the mechanisms to hold these new members or delegates accountable, how these members/delegates would be selected (and how could they be changed), what specified matters would the members/delegates be entitled to approve, what would be the applicable voting threshold for each specified matter, how often would member/delegate meetings be held and how much notice would be required for those meetings, and how would the creation of members/delegates affect the existing Board selection structure. Further, any new structure must be evaluated against the question of whether the new structure actually solves the underlying problem or meets the underlying goal. In some respects, the introduction of “members” or “delegates,” while initially appealing, may not solve the underlying problems and could simply result in moving the “problems” to another body of individuals where similar accountability concerns would persist (i.e., who watches the watchers) ….
>>> 
>>> “4. In the case of inaction by the Board on an issue developed through community consensus, is it possible to have a mechanism that will empower the community to require the Board to take action? 
>>> 
>>> “No. California law does not provide for a mechanism that would empower the community, regardless of whether ICANN has members or not, to force the Board to take action on a community proposal. The activities and affairs of ICANN must be managed and all corporate powers must be exercised under the ultimate direction of the Board….”  
>>> 
>>>  
>>> 
>>> James Gannon
>>> 
>>> Director
>>> 
>>> Cyber Invasion Ltd
>>> 
>>> Dun Laoghaire, County Dublin, Ireland
>>> 
>>> Office: +353 (1)663-8787
>>> 
>>> Cell: +353 (86)175-3581
>>> 
>>> Email:james at cyberinvasion.net
>>> 
>>> GPG: https://keybase.io/jayg
>>> 
>>>  
>>> 
>>>  
>>> 
>>>  
>>> 
>>> 
>>> 
>>> _______________________________________________
>>> CWG-Stewardship mailing list
>>> CWG-Stewardship at icann.orghttps://mm.icann.org/mailman/listinfo/cwg-stewardship
>> 
>> -- 
>> _________________________
>> Graeme Bunton
>> Manager, Management Information Systems
>> Manager, Public Policy
>> Tucows Inc.
>> PH: 416 535 0123 ext 1634
>> 
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