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

[Seun Ojedeji]

Hi Kieren,

May I suggest that we express our emotions using more friendly words (!
foolish). That said, I think you raised good point; issue 2 seem to be a
stress test case of issue 1 and I would suggest it is added to the existing
list of stress test scenarios.

>From what I gathered so far ( including from ICANN 52), this process seem
to be beyond business as usual, Especially as we heard the board confirm it
won't alter the outcome of this process when presenting to NTIA.

One other thing that may be important though is to ensure  implementation
is a perquisite to transition [which i fear will also further confirm the
reality of !transition by Sept :( ]

Cheers!

sent from Google nexus 4
kindly excuse brevity and typos.
On 17 Feb 2015 20:13, "Kieren McCarthy" <kieren at kierenmccarthy.com> wrote:

> 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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>
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