[CCWG-Accountability] Work Stream 1 and the concept of Leverage

Sat Jan 3 19:44:34 UTC 2015

Akinbo asked for specific references, so here you are:

ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the Corporation:
Directors shall serve as individuals who have the duty to act in what they reasonably believe are the best interests of ICANN and not as representatives of the entity that selected them, their employers, or any other organizations or constituencies.

Should there be any confusion about whether the bylaws refer to ‘ICANN’ as the corporation or the community, see ICANN’s own Management Operating Principles (2008 link<https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf>, p. 5):

"The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community.”

ICANN doesn’t have shareholders in the traditional sense, so we are seeking to give voice and voting power to the community ICANN was designed to serve.  California Nonprofit Corporation Law expressly authorizes non-profit organizations to have Members with ultimate authority to control the organization.

Under Cal. Corp. Code § 5310 “A corporation may admit persons to Membership, as provided in its Articles or Bylaws”. California law recognizes that Members may reserve the right to approve nonprofit actions and oversee the Board of Directors. (§ 5210) A Board of Directors’ authority to conduct the affairs of a nonprofit may be limited by the rights of the Members specified in the law or in the nonprofit corporation’s Articles or Bylaws.

Although ICANN does not currently have Members under Article XVII of its Bylaws, ICANN’s Articles of Incorporation expressly anticipate that ICANN may have Members: “These Articles may be amended by the affirmative of at least two-thirds of the directors of the Corporation. When the Corporation has Members, amendments must be ratified by a two-thirds (2/3) majority of the Members voting on any proposed amendment.”  (Section 9)

On Jan 2, 2015, at 11:13, Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>> wrote:

Alan Greenberg has questioned the accountability measures we were placing into Work Stream 1, saying,

"I am somewhat troubled by all of the items in WS1 where I do not see the direct link to the IANA transition. Note I am not saying that they might not be perfectly valid and desirable accountability mechanism, just that I do not see the direct link, and thus perhaps greatly increasing our work to be done to allow transition.”

In responding to Alan, several of us said that a direct link to IANA transition is neither required nor desirable.  Instead, the IANA transition is the community’s last bit of leverage to force accountability measures on ICANN’s board.  The leverage is directly held by NTIA, who has said they would not transition IANA unless there was consensus about holding ICANN accountable to the community once the IANA contract is gone.  And the internet community has indirect leverage, though pressure being brought on the US Administration and on Congress.

So I would hope that Alan and others can gain confidence and comfort with the leverage our CCWG holds in this process.  With that leverage comes the responsibility to create accountability mechanisms that will guide DNS policy making for decades to come.  And we must also get our work done without causing undue delay to the IANA transition process.

Alan’s group is the ALAC, which has often felt the lack of leverage over ICANN’s board and and management.  As a recent example, ALAC called on ICANN to stop delegating new gTLDs serving highly regulated sectors but lacking enforceable public interest commitments (link<https://www.icann.org/en/system/files/correspondence/alac-to-icann-board-16oct14-en.pdf>). ICANN’s board and management might continue signing contracts despite concerns of the ALAC and others, perhaps fearing lawsuits by gTLD applicants.  The fear of lawsuits may also have led the board to ignore community concerns over delegating both singular and plural forms of the same gTLDs.    After all, the ICANN board’s duty is to the interests of the ICANN corporation — not to the community. (see Bylaws <https://www.icann.org/resources/pages/bylaws-2012-02-25-en#VI> Article 6, Section 7).

What would be the source of leverage to hold the board accountable to the community for this decision?  We have seen the futility of Reconsideration requests and Independent Reviews that lack leverage to reverse a board decision.

This IANA transition is our last chance to create mechanisms that could hold ICANN’s board accountable to the community it was designed to serve.   Let's embrace that challenge and use all the leverage we have.

—
Steve DelBianco
Executive Director
NetChoice
http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/>
+1.202.420.7482

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