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

[Kieren McCarthy]

> May I suggest that we express our emotions using more friendly words (!
foolish).

I'm not sure why the use of "foolish" concerns you so much, Seun. I think
it *is* foolish to allow ICANN to pay for independent advice that we would
expect to contradict its own legal advice and on a topic of supreme
importance to the organization.

I could say "ill advised" or "unwise" or "incautious" but that would be
fake diplomacy on my part. I mean "foolish". I wouldn't use, say, "idiotic"
or "stupid" because they would imply people here are not intelligent when
they clearly are. But even very smart people can be foolish.



Kieren


On Tue, Feb 17, 2015 at 11:54 AM, Seun Ojedeji <seun.ojedeji at gmail.com>
wrote:

> 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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