[CCWG-ACCT] Concept of some form of "independent" member

[Greg Shatan]

Bruce,

I think you are misinterpreting the reason(s) for the creation of a formal
member (or members).  It is not primarily to take ICANN to court, and it is
not primarily to have legal enforcement powers.  The reason is far more
fundamental than that.  Speaking from a US law perspective (though I
believe this to be more widespread), Members have a legally distinct role
in a nonprofit corporation, particularly with regard to authority and
decision-making vis a vis the Board.  It really goes to the ability to have
the powers that the CCWG is seeking to place in the hands of the community,
and to have these powers as a matter of right.  Members must be legal
persons.  This legal personhood also gives members the capacity to go to
court; but that is hardly the *reason* for a member or members to be
created.

Given the powers that a member of a non-profit corporation has, putting
these powers in the hands of an independent person, without control by or
accountability to the SO/ACs or the community as a whole, seems
inappropriate and raises great concerns.

Greg

On Fri, Jul 17, 2015 at 4:03 AM, Bruce Tonkin <
Bruce.Tonkin at melbourneit.com.au> wrote:

>  Hello All,
>
>
>
> [Disclaimer: the following is a personal view, and not the view of the
> Board or any other Board member).
>
>
>
> During the discussion today on the three models – Empowered SO/AC
> membership model, Empowered SO/AC Designator Model, Community Mechanism as
> sole member model.
>
>
>
> I noted that one of the ideas we used in the new gTLD program was the
> concept of an “Independent Objector”.     The independent objector does not
> act on behalf of any particular person or entities but acts solely in the
> best interests of the public.
>
>
>
> From my perspective the bylaws should “empower” the community as have been
> proposed by the CCWG.
>
>
>
> My intervention is purely about an enforcement last resort.
>
>
>
> The group is considering using a panel of independent people (IRP panel)
> to determine whether the Board has followed the bylaws.   The group is also
> considering making the decisions of this panel to be binding.
>
>
>
> I have heard there is a  concern that the Board may not follow the result
> of an IRP.   Thus the proposal is some form of formal member would then be
> able to take ICANN to court meet its bylaws requirements around the IRP.
> There are lots of discussions about how to somehow turn the SO/ACs into
> members to be able to have legal enforcement powers.
>
>
>
> My suggestion was simply to create another form of “independent” person
> that would have legal standing and would be a member.   That independent
> person could then take legal action against ICANN if it didn’t follow the
> decision of the IRP where it is clearly not in the global public
> interest.   The independent person would be able to take submissions from
> the SOs and ACs and any member of the public in making their decision.  It
> is not dependent on simply those that are members of an SO and AC being
> able to get their SO/AC to take action through one of the proposed models,
> but could take into account any member of the public (including ccTLD
> managers that are not members of the ccNSO).
>
>
>
> Regards,
>
>
>
> Bruce Tonkin
>
> (personal comment)
>
>
>
>
>
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>
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