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

Wed Feb 18 00:29:00 UTC 2015

Well, here's hoping you're right.

But not to distract from the main reason for my post:

1. How tackle conflict between internal and external advice
2. Anti-trust interpretation of accountability measures

Kieren

On Tue, Feb 17, 2015 at 2:08 PM, Phil Corwin <psc at vlaw-dc.com> wrote:

>  Agreed.
>
>
>
> It would be remiss not to take available ICANN funds to hire qualified and
> expert counsel on these important questions. Those funds have been derived
> from the community, primarily in the form of registrant fees upstreamed
> through contracted parties.
>
>
>
> As Greg observed, so long as the WG has the autonomy to select the law
> firm and the WG and not ICANN is its client, the advice it renders will be
> independent of ICANN’s views and corporate interest.
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597 <202-559-8597>/Direct*
>
> *202-559-8750 <202-559-8750>/Fax*
>
> *202-255-6172 <202-255-6172>/cell*
>
>
>
> *Twitter: @VlawDC*
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Edward
> Morris
> *Sent:* Tuesday, February 17, 2015 5:03 PM
> *To:* Greg Shatan
> *Cc:* Accountability Cross Community
> *Subject:* Re: [CCWG-ACCT] Thinking ahead - overcoming the legal
> obstacles to accountability
>
>
>
> Excellent explanation of a component of American legal practice that
> non-Americans or non-lawyers may not be familiar with. Thank you very much
> Greg.
>
>
>
> Sent from my iPad
>
>
> On Feb 17, 2015, at 9:58 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
>  Kieren,
>
>
>
> I don't think it is foolish at all to have ICANN pay for the independent
> advice.  It is not uncommon for one party to pay the bill and for another
> party to be the client.  It's not even uncommon to have a board committee
> of a corporation hire independent counsel where the committee's interests
> are divergent from the corporation (e.g., when dealing with an internal
> investigation) and have the corporation pay.  These are situations that law
> firms are comfortable handling.  Basically, the question is "who is the
> client?" and the client would be the Working Group(s), not ICANN.  The law
> firm's ethical "duty of loyalty" is to the client, not the entity paying
> the bills.  Given that these ethical rules are in fact taken very seriously
> and that these are all firms that likely have over $1 billion in revenues,
> the temptation to "cheat" and be ICANN-friendly would be basically
> non-existent.
>
>
>
> What would be foolish would be to fail to set up the relationship between
> the firm and the Working Group(s) in the ways needed to maintain
> "independence." and/or to then fail to govern ourselves (and for ICANN to
> govern itself) in a way that preserves that independence.  That would be a
> huge waste of time, money and effort, likely set back transition schedules,
> and send a terrible message regarding ICANN's accountability and
> self-control.
>
>
>
>
>
> Greg
>
>
>
> On Tue, Feb 17, 2015 at 4:42 PM, Kieren McCarthy <
> kieren at kierenmccarthy.com> wrote:
>
> > 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
>
>
>
>
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
>
>
> --
>
> *Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
>
> *Partner** | IP | Technology | Media | Internet*
>
> *666 Third Avenue | New York, NY 10017-5621*
>
> *Direct*  212-885-9253 *| **Main* 212-949-9022
>
> *Fax*  212-949-9190 *|* *Cell *917-816-6428
>
> *gsshatan at lawabel.com <gsshatan at lawabel.com>*
>
> *ICANN-related: gregshatanipc at gmail.com <gregshatanipc at gmail.com>*
>
> *www.lawabel.com <http://www.lawabel.com/>*
>
>  _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>  ------------------------------
>
> No virus found in this message.
> Checked by AVG - www.avg.com
> Version: 2015.0.5646 / Virus Database: 4284/9131 - Release Date: 02/17/15
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150217/b04e21ec/attachment.html>