[CCWG-Accountability] Regarding Non-profit and public-benefit legal structure

Wed Jan 7 14:03:53 UTC 2015

Dear Colleagues,

Many thanks for this very valuable discussion.

While it confirms that our initial orientation towards the ability to, 
somehow, oversee the Board, is relevant and worth exploring, the latest 
comments (regarding risk of capture) highlight that we should also 
anticipate on the accountability of the overseeing mechanism itself.

If "the community" (through a mechanism yet to be determined) oversees 
Board and staff, can we ensure all stakeholders, especially those who 
are less familiar with Icann, that "the community", in turn, is 
accountable (ie has the relevant independent checks and balances, review 
and redress mechanisms) ? A significant challenge, but I'm confident our 
group can address that.

This aspect might, however, need to be addressed in our definition of 
WS1, if there is agreement that is a necessary element for the 
transition to take place.

Best,
Mathieu

Le 07/01/2015 09:07, Dr Eberhard W Lisse a écrit :
> I am not interested much in the details, interesting as they are 
> :-)-O, but would like to pick up on  Bruce's last paragraph, because 
> in my view, the "membership supervision" is not going to help much as 
> it is prone to capture, quite the opposite of the accountability we want.
>
> greetings, el
>
> Sent from Dr Lisse's iPad mini
>
> On Jan 7, 2015, at 02:40, Greg Shatan <gregshatanipc at gmail.com 
> <mailto:gregshatanipc at gmail.com>> wrote:
>
>> What Bruce has set forth is close to correct. However, I can't help 
>> but do a little legal nit-picking.
>>
>> "Public benefit corporation" is a term used in California (among 
>> other places) as a term for non-profit corporations generally.  (In 
>> New York State, we use the term "not-for-profit corporation" to mean 
>> basically the same thing as a California "public benefit corporation" 
>> (and we use the term "public benefit corporation" to mean something 
>> quite different -- a quasi-public corporation like the Metropolitan 
>> Transport Authority).)  California public benefit corporations are 
>> not really "chartered by the state" (though New York ones like the 
>> MTA are chartered by the state).  [Wikipedia isn't always a great 
>> source....]
>>
>> In California, public benefit corporations may be created with or 
>> without members, or may convert from member to non-member and vice 
>> versa.  However, a public benefit corporation with members is still a 
>> public benefit corporation.
>> (California also has "mutual benefit corporations" which are 
>> non-profit but never charitable (and are also not tax-exempt).  
>> Mutual benefit corporations are run for the benefit of their members, 
>> and not for the benefit of the general public.)
>>
>> The term "member" can also be used to mean people (or organizations) 
>> who aren't really members.  For instance, when you become a "member" 
>> of a museum, you are not becoming a member of the corporation (i.e., 
>> what some in ICANN-land have termed a "statutory member").  These 
>> non-statutory "memberships" are more for marketing purposes and have 
>> no governance role.  "Statutory members" on the other hand, have a 
>> role in governance (which can vary markedly depending on the by-laws 
>> of the particular corporation.
>>
>> Hope this helps.
>>
>>
>> Best regards,
>>
>> Greg Shatan
>> (Speaking for myself, and not giving legal advice as I am not a 
>> member of the California Bar)
>>
>> On Tue, Jan 6, 2015 at 6:54 PM, Bruce Tonkin 
>> <Bruce.Tonkin at melbourneit.com.au 
>> <mailto:Bruce.Tonkin at melbourneit.com.au>> wrote:
>>
>>     Hello Phil,
>>
>>
>>     >>   I would envisage the Board having to be compliance with all
>>     Corporate Governance Codes specific to Companies Law in the
>>     country of incorporation, subject to a community consensus
>>     override. But what is its corporate status - not for profit or
>>     for profit - as different codes would  apply ?
>>
>>     The legal status  of ICANN is as specified in its articles of
>>     incorporation:
>>
>>     https://www.icann.org/resources/pages/articles-2012-02-25-en
>>
>>     "This Corporation is a non-profit public benefit corporation and
>>     is not organized for the private gain of any person. It is
>>     organized under the California Non-profit Public Benefit
>>     Corporation Law for charitable and public purposes. The
>>     Corporation is organized, and will be operated, exclusively for
>>     charitable, educational, and scientific purposes within the
>>     meaning of § 501 (c)(3) of the Internal Revenue Code of 1986, as
>>     amended (the "Code"), or the corresponding provision of any
>>     future United States tax code. Any reference in these Articles to
>>     the Code shall include the corresponding provisions of any
>>     further United States tax code."
>>
>>     Also from:
>>
>>     http://en.wikipedia.org/wiki/Public-benefit_nonprofit_corporation
>>
>>     "A public-benefit non-profit corporation  is a type of non-profit
>>     corporation chartered by a state government, and organized
>>     primarily or exclusively for social, educational, recreational or
>>     charitable purposes by like-minded citizens.  Public-benefit
>>     nonprofit corporations are distinct in the law from
>>     mutual-benefit nonprofit corporations in that they are organized
>>     for the general public benefit, rather than for the interest of
>>     its members."
>>
>>     I believe it was deliberately set up as public benefit rather
>>     than a member organization - to avoid the situation where the
>>     members become limited to say gTLD registries and registrars and
>>     hence it ends up operating primarily for the benefit of the
>>     domain name registration industry.
>>
>>     Any move away from a public-benefit corporation to a membership
>>     corporation - would need to carefully consider how to ensure that
>>     the members are reflective of the broader Internet community and
>>     don't become limited to a few members as interest in "ICANN"
>>     drops over time.   I.e. a failure scenario of membership
>>     organisation is what happens to the membership base over time and
>>     how it can be protected from capture.    I have seen some
>>     membership based ccTLDs get into problems when their membership
>>     becomes dominated by domain name investors for example.
>>
>>     Regards,
>>     Bruce Tonkin
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-- 
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr
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