[CCWG-ACCT] FW: [WP1] Comments and questions on legal docs

[Samantha Eisner]

Dear CCWG members,

On a legal sub-team call I committed to identify those questions that seem more ripe for legal inputs as opposed to conversation among the CCWG members or sub-groups.

I think that Question 5, 7 and 8 are more questions for the accountability team as opposed to needing legal advice in the first instance.  I propose that the attorneys NOT be asked to address these in the first instance to focus their attention on the more legally based questions posed below.

Thanks for your consideration.

Best,

Sam

From: Samantha Eisner <samantha.eisner at icann.org<mailto:samantha.eisner at icann.org>>
Date: Tuesday, April 14, 2015 at 6:58 PM
To: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>, "wp1 at icann.org<mailto:wp1 at icann.org>" <wp1 at icann.org<mailto:wp1 at icann.org>>
Subject: [WP1] Comments and questions on legal docs

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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