[CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

Mon Jun 15 21:19:33 UTC 2015

I can’t agree more Roelof.

----------------------------------------------------------------------------
----

Tijani BEN JEMAA

Executive Director

Mediterranean Federation of Internet Associations (FMAI)

Phone:  + 216 41 649 605

Mobile: + 216 98 330 114

Fax:       + 216 70 853 376

----------------------------------------------------------------------------
----

De : accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] De la part de
Roelof Meijer
Envoyé : lundi 15 juin 2015 08:04
À : Drazek, Keith; Chris Disspain
Cc : accountability-cross-community at icann.org
Objet : Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary
Model

Keith,

I wonder if with "If a future ICANN Board were to jump the tracks, the
community will no longer have the NTIA backstop. Without legal
enforceability, the community would have to trust future ICANN Boards and
trust future California Attorney Generals. “ you’re not oversimplifying or
over-contrasting between the  situation with legal enforceability and
without.

I think that in a situation where the board “jump the track”, the community
ultimately goes through its process to spill the board and the board refuses
to go, that board would be paralyzed in all ways, face shame and defamation
individually on a global scale and would ruin their personal careers
completely.

They would dimply not do that.

Best,

Roelof

From: <Drazek>, Keith Drazek <kdrazek at verisign.com>
Date: zondag 14 juni 2015 03:52
To: Chris Disspain <ceo at auda.org.au>
Cc: "accountability-cross-community at icann.org"
<accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary
Model

Chris, 

NTIA's current enforcement powers are indirect but very real. Through its
existing ability to re-bid the IANA Functions contract, NTIA ensures that
ICANN and its Board of Directors remain true to its bylaws. That unique role
is set to change.

If a future ICANN Board were to jump the tracks, the community will no
longer have the NTIA backstop. Without legal enforceability, the community
would have to trust future ICANN Boards and trust future California Attorney
Generals. Why shouldn't we instead trust the global multi-stakeholder
community itself? 

If a future ICANN community were to try to spill the board, wouldn't we want
that consensus decision to be legally enforceable? Or do we want to allow a
future Board to tell the community it was wrong and, claiming fiduciary
responsibility to the corporation, reject the decision?

Ultimately, we're deciding whether authority should rest with the ICANN
Board and the California AG, or with the ICANN community and the California
AG. 

I'm in favor of the latter.

Regards,

Keith 

On Jun 13, 2015, at 6:08 PM, Chris Disspain <ceo at auda.org.au> wrote:

Hi Paul, 

I was specifically responding to Keith’s point so hardly a non-sequitur. 

Cheers,

Chris

On 14 Jun 2015, at 02:29 , Paul Rosenzweig
<paul.rosenzweig at redbranchconsulting.com> wrote:

Chris

We need more formal powers for the community because much of the power of
the NTIA was informal. The only thing that could replace the NTIA precisely
would be the NTIA.  I get that you don't like the membership model. But
asking why a non-governmental solution is different from a governmental one
is just a non sequitur. 

Paul 

--
Sent from myMail app for Android

Friday, 12 June 2015, 11:12PM -04:00 from Chris Disspain <ceo at auda.org.au>:

Greetings All, 

1. on Becky’s comment below: if that is correct then surely the same applies
to the relationship between the SO/AC and its Unincorporated Association. If
a court cannot enforce a Board spill by the SOs/ACs then a court can also
not make the UA do what the SO or AC wants. Can it?

2. on Keith’s comment below: How does the NTIA currently have powers of
enforcement over ICANN outside of matters covered in the IANA contract? If
NTIA was/is prepared to enter into an Affirmation of Commitment with ICANN
which can be terminated by either party and is not legally enforceable, why
should we insist on a higher standard? 

Cheers,

Chris

On 13 Jun 2015, at 02:05 , Drazek, Keith <kdrazek at verisign.com
<x-msg://e-aj.my.com/compose/?mailto=mailto%3akdrazek@verisign.com> > wrote:

Thanks Becky,

I think you highlight a key point.

Currently, NTIA and the California Attorney General are the only enforcement
bodies ensuring ICANN remains committed to its bylaws.

The membership structure would give some of that authority to the ICANN
community through its existing structures -- the SOs and ACs.

Isn’t that the definition of transitioning the United States government (in
its various forms) out of its unique role?

After NTIA disengages, don’t we want the community to have shared authority
for enforcement, rather than leaving it to the California Attorney General
alone?

Regards,
Keith

From:
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu
nity%2dbounces at icann.org> accountability-cross-community-bounces at icann.org [
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu
nity%2dbounces at icann.org>
mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Burr,
Becky
Sent: Friday, June 12, 2015 11:07 AM
To: Roelof Meijer; Accountability Cross Community
Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart,
Voluntary Model

Roelof,

shi

As I understand it, Courts view the bylaws as a contract between a
corporation and its members/shareholders.  If ICANN has no members, the
bylaws are not a contract with anyone, so the only party with authority to
enforce would be the Attorney General.  (As discussed elsewhere, this is
extremely unlikely to happen outside of a fraud/corruption situation.)

The fact that members of SO’s are legal entities doesn’t change this.
Unless they are members of ICANN, they are not a party to the bylaws
“contract.”

B

J. Beckwith Burr

Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington, DC 20006

Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  /
<x-msg://e-aj.my.com/compose/?mailto=mailto%3abecky.burr@neustar.biz>
becky.burr at neustar.biz /  <http://www.neustar.biz/> http://www.neustar.biz

From: Roelof Meijer <
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aRoelof.Meijer@sidn.nl>
Roelof.Meijer at sidn.nl>
Date: Friday, June 12, 2015 at 8:18 AM
To: Accountability Community <
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu
nity at icann.org> accountability-cross-community at icann.org>
Subject: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary
Model

Dear all, and especially dear legal colleagues,

The memo states:

"If there were a dispute between ICANN and an SO/AC, the parties could agree
to an IRP and binding arbitration, but there would be no mechanism to
restrain ICANN from acting contrary to these decisions, nor would there be a
mechanism to challenge an arbitration decision that exceeded the scope of
authority of the arbitration panel, outside an unlikely, independent
intervention by the California Attorney General. "

I understand that the SO/AC’s, not being legal entities, cannot take legal
action to enforce. However, does that really equal "no mechanism to restrain
ICANN from acting contrary to these decisions”?

Most members of SO’s are legal entities, many members of AC’s are too,
couldn’t those members, being affected parties, individually or collectively
take legal action?

Alternatively, I would assume that before the ultimate step of talking legal
action against ICANN, the community will have escalated through its powers
and thus has completed the procedure to recall the entire board. The power
to recall the entire board will have to be combined with the power to in one
way or another appoint an interim board. So, the community, through due
process, recalls the board. The board, in contradiction with the bylaws,
refuses “to go”. The community has recalled the board and thus, through the
defined process (also in the bylaws), appoints an interim board. According
to the bylaws, this interim board is now the legal representative of ICANN.
And can take the required legal action (if necessary) to force the “old”
board to go away and get lost.

Would one of these two work?

Best,

Roelof Meijer

From: <Hofheimer>, "Joshua T." <
<x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>
jhofheimer at sidley.com>
Date: donderdag 11 juni 2015 06:09
To: "
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.o
rg> ccwg-accountability5 at icann.org" <
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.o
rg> ccwg-accountability5 at icann.org>
Cc: Sidley ICANN CCWG <
<x-msg://e-aj.my.com/compose/?mailto=mailto%3asidleyicannccwg@sidley.com>
sidleyicannccwg at sidley.com>, ICANN-Adler <
<x-msg://e-aj.my.com/compose/?mailto=mailto%3aICANN@adlercolvin.com>
ICANN at adlercolvin.com>
Subject: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

Dear Legal Sub-Team,

Further to the CCWG request on the call last Friday, attached is a memo
revising the summary chart describing the viability of the enumerated powers
under the three models – Member model, Designator Model and Voluntary Model.
We also explore the impact of not having the SO/ACs organized legal persons
to represent their interests.

Cheers,

Josh

JOSHUA HOFHEIMER 

Sidley Austin LLP
+1.213.896.6061 (LA direct)
+1.650.565.7561 (PA direct)
+1.323.708.2405 (cell)
 <x-msg://e-aj.my.com/compose/?mailto=mailto%3ajhofheimer@sidley.com>
jhofheimer at sidley.com

<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-
g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Q
OhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZ
lGqNG7PIfFS4&e=> http://www.sidley.com

<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-
g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Q
OhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZ
lGqNG7PIfFS4&e=> Image supprimée par l'expéditeur.
http://www.sidley.com/files/upload/signatures/SA-autosig.png SIDLEY AUSTIN
LLP

From:
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounc
es at icann.org> ccwg-accountability5-bounces at icann.org [
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5%2dbounc
es at icann.org> mailto:ccwg-accountability5-bounces at icann.org] On Behalf Of
Hilton, Tyler
Sent: Monday, June 08, 2015 8:29 PM
To:
<x-msg://e-aj.my.com/compose/?mailto=mailto%3accwg%2daccountability5@icann.o
rg> ccwg-accountability5 at icann.org
Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions

Dear Legal Sub-team,

Attached please find a memo responding to the list of questions from the
Governmental Advisory Committee (GAC) provided to us on June 5, 2015.

Best,

TYLER HILTON
Associate

Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
+1.213.896.6130
 <x-msg://e-aj.my.com/compose/?mailto=mailto%3athilton@sidley.com>
thilton at sidley.com

<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g
&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QO
hQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=RZAttuK9gIR-rWhgnzzBCJwmd-AX6TvL
B6W-cfwGyV4&e=> http://www.sidley.com

<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-
g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Q
OhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZ
lGqNG7PIfFS4&e=> Image supprimée par l'expéditeur.
http://www.sidley.com/files/upload/signatures/SA-autosig.png SIDLEY AUSTIN
LLP

****************************************************************************
************************
This e-mail is sent by a law firm and may contain information that is
privileged or confidential.
If you are not the intended recipient, please delete the e-mail and any
attachments and notify us
immediately.

****************************************************************************
************************

_______________________________________________
Accountability-Cross-Community mailing list

<x-msg://e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommu
nity at icann.org> Accountability-Cross-Community at icann.org
 <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
<x-msg://1/compose?To=Accountability%2dCross%2dCommunity@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

---
Ce courrier électronique ne contient aucun virus ou logiciel malveillant parce que la protection avast! Antivirus est active.
https://www.avast.com/antivirus
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150615/691f0439/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 350 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150615/691f0439/image001.jpg>