[CCWG-ACCT] Thinking ahead - overcoming the legal obstacles to accountability

[Kieren McCarthy]

Hello all,

There have been no less than seven previous attempts to introduce real
accountability at ICANN. They have all failed to achieve a fundamental
goal: override or impact ICANN corporate (under whatever circumstances).

In the specific cases where the override recommendations have been
explicit, they have been undermined at the last step by ICANN internal
legal advice.

This group has, to some degree, learned from the past by deciding that it
needs to get independent legal advice for its recommendations as part of
the process.

Even more usefully, ICANN's legal team has been prompted into providing its
own legal analysis so we know what its position is ahead of time.

Aside from the fact that I think allowing ICANN to pay for the external
independent legal advice is foolish in the extreme, I see two fundamental
issues for this group to discuss and reach agreement on if this process is
to have the desired end result.

And they are:

1. What happens if/when the independent legal advice say a particular
mechanism is perfectly legal but ICANN's internal legal advice say it isn't?

What will Board members do? How do we ensure this discussion happens
publicly and with plenty of time remaining?

I think we should ask Board members now what they would do. Would they be
willing to override internal legal advice, and under what circumstances?
Will they commit to some kind of binding arbitration in the event that the
two legal advices conflict in fundamentally important ways?

This is an almost inevitable scenario so let's get ahead of it now and make
reasoned decisions before the pressure and politics come into play. Plan
ahead.


2. A fundamentally piece of the accountability mechanisms that are likely
to be recommended includes making ICANN a member organization of some type.

We have Jones Day on record as saying that don't think California law
allows anyone but the Board to make final decisions (in fact, they don't
actually say that if you read it carefully because they know it's not true).

What we don't have is Jones Day/ICANN on record talking about the other
legal get-out clause they have used in the past when it comes to
accountability: anti-trust law.

ICANN's particular interpretation of anti-trust law has been pulled out as
a final defense multiple times but I haven't seen it yet in this latest
round of accountability discussions, so it is more than possible that it is
holding back that particular defense now that the "California law corporate
code" genie is out of the bottle.

I can easily see a scenario where we all agree that it is possible to make
these changes under California corporate law and then agree to hand over
IANA to ICANN only to find that the Board discovers at the last minute that
they also violate anti-trust law and so, regretfully, cannot be
implemented.

So I would ask this group to try to get ICANN's formal position on
anti-trust law with respect to possible changes and also get independent
legal advice on that aspect too.

I would also recommend that people go through previous failures to
introduce recommendations and try to find what the legal justifications
were that prevented them from being implemented. And then do the same
pre-emptive work so we don't end up repeating history.

Hope this is useful.



Kieren
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