[CCWG-ACCT] Legal question

Fri May 1 05:41:07 UTC 2015

Presumably because they only act on instructions of the SO or AC.

An easy way to imagine it: the ccnso council has a section of its meeting
when it is 'acting as the member' and does relevant things.

The ccnso can deal with things being done wrong 'as a member' as it can
when they are being done wrong 'as the ccnso'.

Does that help?

Jordan

On Friday, 1 May 2015, Chris Disspain <ceo at auda.org.au> wrote:

> If the UA is only activated when the SO/AC tells its appointed members to
> act, tight control should not be difficult at all.
>
>
> How do you ensure the 'appointed members' do as the SO/AC wishes unless
> the SO/AC can enforce?
>
>
>
> Cheers,
>
>
> Chris
>
> On 1 May 2015, at 15:09 , Greg Shatan <gregshatanipc at gmail.com
> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>> wrote:
>
> It really goes to how the members of the UA are chosen (a UA needs only
> two members, so they can be officers of the SO/AC or chosen by some other
> process) -- it need not be as you describe (though what you describe is a
> reasonable possibility given the proper circumstances).  If the UA is only
> activated when the SO/AC tells its appointed members to act, tight control
> should not be difficult at all.
>
> I may have to take your word on the penguins, as you are far closer to
> their native habitat than I.  (Though I would note that the Central Park
> penguins are international movie stars, due to the move "Madagascar" and
> its offspring.)  However, to be fair, I was actually thinking of a tube
> television set and not a flat screen TV, so we may have some
> misunderstanding at work here as well (*See*, "Penguin on the Telly,"
> Monty Python, 1971, https://youtu.be/pwTqC2T6q4E)  I do think a large
> console TV would not be salubrious to a penguin beneath it, while it would
> provide a pleasant perch for the penguin (barring any unfortunate
> explosions).  With a flat screen TV, the opposite applies.
>
> So, in each case, it's a matter of how the object is designed, not merely
> a matter of what the object is.
>
> Greg
>
> On Fri, May 1, 2015 at 12:53 AM, Chris Disspain <ceo at auda.org.au
> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>
>> Leaving aside your penguin analogy (and incidentally you CAN put a
>> television on top of a penguin and it is, in fact, likely to stay there far
>> longer than the penguin will stay on top of the television) I think you may
>> have misunderstood me.
>>
>> I completely get that the members of the UA control it. The point we are
>> discussing is how members of SO/AC who are NOT members of the UA can ensure
>> that the UA doesn't go rogue or does what the SO/AC wants.
>>
>> Unless I'm mistaken, to overcome the possibility that an SO or AC won't
>> itself want to become an UA or that to do so will involve a significant
>> decrease in membership, the idea is that a UA is set up and those members
>> of the SO or AC who feel comfortable doing so can become members of the UA
>> (minimum 2) or the SOAC can nominate members. Fine. BUT the SO/AC itself is
>> NOT a member and it is the SO/AC that the UA is representing as a member.
>>
>> How does the SO/AC ensure the UA does its bidding?
>>
>> Surely the only folks who can control the UA are its members so how does
>> the SO/AC ensure that those UA members follow the instructions of the
>> SO/AC. Surely this is precisely the same conundrum as the SO/AC ICANN one.
>> For anything to be enforceable the SO/AC would need to be a legal entity or
>> every member of the SO/AC would need to join the UA which amounts to the
>> same thing.
>>
>> What am I missing here?
>>
>>
>> Cheers,
>>
>>
>> Chris
>>
>> On 1 May 2015, at 14:34 , Greg Shatan <gregshatanipc at gmail.com
>> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>> wrote:
>>
>> Also, UAs are member associations in their essence, so control of the
>> members gives you control of the UA.  That's very different from a
>> non-profit (non-membership) corporation.  So, it's really diametrically
>> opposite to the relationship between ICANN and the SO/ACs in very
>> fundamental ways.  Saying that "the same would apply" in the ICANN
>> situation is like saying that because you can put a penguin on top of a
>> television, you can put a television on top of a penguin.....
>>
>> On Fri, May 1, 2015 at 12:30 AM, Greg Shatan <gregshatanipc at gmail.com
>> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>> wrote:
>>
>>> If the SO/ACs created ICANN, it might apply.  Unfortunately, it's the
>>> other way around.
>>>
>>> On Fri, May 1, 2015 at 12:28 AM, Chris Disspain <ceo at auda.org.au
>>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>>>
>>>> Thanks Greg.
>>>>
>>>> I'll consider the points you make on policy and indeed the fundamental
>>>> underpinnings of the ICANN model and respond in the next day or so.
>>>>
>>>> However, on the legal question:
>>>>
>>>> Finally, I have to say I disagree with your contention that each SO/ACs
>>>> would need to become an unincorporated association ("UA") rather than
>>>> merely create one.  Admittedly, the issue of how each SO/AC can control its
>>>> "alter ego" has not been fully fleshed out.  However, I believe this was
>>>> discussed at some length on the legal sub team call and it seems that
>>>> between the bylaws of the UA and the charter of the SO/AC there should be
>>>> very tight control by the SO/AC over any actions of the UA.
>>>>
>>>>
>>>> I look forward to hearing how a combination of the bylaws of the UA and
>>>> the SO/AC charters will work to provide very tight control by the SO/AC. If
>>>> they do then surely the same would apply to the ICANN bylaws and the SO/AC
>>>> charters providing a similarly tight control over the actions of ICANN.
>>>>
>>>> Cheers,
>>>>
>>>> Chris
>>>>
>>>> On 1 May 2015, at 13:50, Greg Shatan <gregshatanipc at gmail.com
>>>> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>> wrote:
>>>>
>>>> Chris,
>>>>
>>>> Here are my preliminary thoughts:
>>>>
>>>> First, though you said you don't want to debate the example itself, the
>>>> example troubles me and I think it goes deeper than the example.   I think
>>>> that the establishment of a "TMCH for IGOs" would be new gTLD policy, and
>>>> almost certainly Consensus Policy, and thus should not be adopted as the
>>>> example states.  Instead, it should be directed down the PDP path to the
>>>> GNSO.  Indeed, if I am not mistaken, that is what happened and resulted in
>>>> the IGO/INGO Curative Rights Working Group, which may or may not make
>>>> policy recommendations consistent with the GAC advice.  So, I think the
>>>> premise that the example was meant to demonstrate -- that GAC advice is due
>>>> more deference than any other input to the Board and that only the Board
>>>> can set a course contrary to GAC advice -- seems faulty.
>>>>
>>>> This also highlights that the point is not unique to the GAC; it is
>>>> equally true of the GNSO (or rather, it is true of Board decisions that
>>>> emanate from the GNSO's processes).  The Board could adopt policy
>>>> recommendations from the GNSO that are reflected in the budget, only to
>>>> have a supermajority of the Membership send the budget back.
>>>>
>>>> Fundamentally, whether there is a Board action that results from GAC
>>>> Advice or from a GNSO Recommendation (or from the ccNSO or from the Staff
>>>> or elsewhere), it is a Board action.  And a fundamental premise of the
>>>> CCWG's work is that certain Board decisions will now be subject to certain
>>>> specified constraints being placed in the hands of the Membership.
>>>>
>>>> To answer your direct question -- this is not a fundamental shift in
>>>> the standing of GAC advice and thus a fundamental change in the GAC's
>>>> interface with the rest of ICANN; it's something more wide-ranging than
>>>> that.  It is a fundamental shift in the standing of certain Board decisions
>>>> (whatever their provenance) and thus a fundamental change in the Board's
>>>> interface with the community.
>>>>
>>>> Frankly, if we were to propose that a multilateral organization gets
>>>> the last word over the global multistakeholder community (as represented by
>>>> the proposed Membership), we would have failed by most yardsticks -- not
>>>> least the yardstick set forth by the NTIA for the IANA stewardship
>>>> transition.
>>>>
>>>> Finally, I have to say I disagree with your contention that each SO/ACs
>>>> would need to become an unincorporated association ("UA") rather than
>>>> merely create one.  Admittedly, the issue of how each SO/AC can control its
>>>> "alter ego" has not been fully fleshed out.  However, I believe this was
>>>> discussed at some length on the legal sub team call and it seems that
>>>> between the bylaws of the UA and the charter of the SO/AC there should be
>>>> very tight control by the SO/AC over any actions of the UA.
>>>>
>>>> Greg
>>>>
>>>> On Thu, Apr 30, 2015 at 10:11 PM, Chris Disspain <ceo at auda.org.au
>>>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>>>>
>>>>> Jordan, Greg,
>>>>>
>>>>> I would like to focus upon two of Jordan's responses in his note of 22
>>>>> April. Greg you asked me a similar question re the GAC point -
>>>>>
>>>>> GAC:
>>>>>
>>>>> *CD: However I see a serious incompatibility between the members'
>>>>> powers and the standing of GAC advice to the Board. It's not that GAC
>>>>> advice is or indeed should be invariably followed but currently where GAC
>>>>> advice is at odds with the position of others in the community the advice
>>>>> carries significant weight and there is a bylaw mandated process for
>>>>> rejecting the advice through a process which takes around 6 months. The
>>>>> change to a members based structure would mean that for certain issues the
>>>>> actions of members will trump GAC advice. So there is a significant shift
>>>>> in the carefully constructed balance of power. Now, many of us may think
>>>>> that such a shift is no bad thing but I wonder whether the governments of
>>>>> the world are going to agree?*
>>>>>
>>>>> *JC: I don't understand this. I have not seen any hint of anyone
>>>>> suggesting that a power that Members should have includes overriding
>>>>> decisions on matters of public policy, which is the advice that the GAC
>>>>> gives the Board and which the bylaws would continue to require it to give
>>>>> due deference to (perhaps with an adjustment about when that reconciliation
>>>>> process has to happen, should GAC change its operating principles).*
>>>>>
>>>>> *If GAC advice on public policy matters led to changes in the bylaws,
>>>>> or the inclusion by the Board of business or strategic plans or budgets,
>>>>> then the new powers might have an impact. But all that would require the
>>>>> Board and the GAC to do is to persuade the broader ICANN system, or at
>>>>> least some of it, that their ideas are ones that should be pursued.*
>>>>>
>>>>> *Does that feel like a fundamental issue to you? It doesn't to me.*
>>>>>
>>>>> I'm saying is that it might well be a fundamental issue for GAC
>>>>> members. Using an example is the best way to illustrate my point, though I
>>>>> don't want to get into a debate on the likelihood or otherwise of the
>>>>> example itself. The ICANN Board receives (and will continue to receive)
>>>>> advice from the GAC that potentially affects the ICANN Budget.
>>>>>
>>>>> Consider a situation where the GAC advises that ICANN should create a
>>>>> repository, much like the TMCH, for the acronyms of IGOs. The repository
>>>>> would be used to advise the relevant IGO that their acronym has been
>>>>> registered in a given gTLD and also to advise the registrant that their
>>>>> registration matches a name in the repository.
>>>>>
>>>>> Assuming that the Board accepts this advice, it would then be required
>>>>> to make a budgetary allocation for establishment of the repository and an
>>>>> annual operating budget.
>>>>>
>>>>> In the scenario we are discussing regarding members' powers, it would
>>>>> be possible for the community to veto the Budget on this point. This then
>>>>> creates a conflict between the public policy advice from the GAC and the
>>>>> powers of members. Should such a situation occur, how would you see it
>>>>> being resolved? Is this not a fundamental shift in the standing of GAC
>>>>> advice and thus a fundamental change in the GAC's interface with the rest
>>>>> of ICANN?
>>>>>
>>>>> SOs/ACs generally:
>>>>>
>>>>>
>>>>> *CD: Further, quite a number of ccTLD managers are departments of the
>>>>> relevant government or quasi-government bodies. Not everyone runs their
>>>>> ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged
>>>>> to enjoy. I consider it highly unlikely that sovereign governments will
>>>>> permit a government department to join an association in the US (or any
>>>>> other country for that matter).*
>>>>>
>>>>> *JC: They won't have to, to do what they do in ICANN today.*
>>>>>
>>>>> *The suggestion is they might have to if they want to take part in
>>>>> exercising the accountability powers set out in our report that's going for
>>>>> public comment.*
>>>>>
>>>>> *That said, there's a bit of an objective legal question here - which
>>>>> is whether the decisions of these uninc associations can be forced to take
>>>>> account of the views expressed in the ICANN bodies they shadow in making
>>>>> their decisions. If they can (which I would analogise to the ccNSO taking
>>>>> on board the views of non-member ccTLDs - and so I assume it is possible),
>>>>> much of this debate becomes moot.*
>>>>>
>>>>> You make a good point about the legal question. It is one I have yet
>>>>> to see an answer to.
>>>>>
>>>>> This relates to the comment I made yesterday.
>>>>>
>>>>> The only way I can see to ensure that the views of ICANN bodies are
>>>>> taken into account is if those SO/ACs become the unincorporated
>>>>> associations themselves. Creating shadow organisations gives rise to the
>>>>> question you raise and significant concerns regarding the accountability of
>>>>> these "alter egos". To me, this seems like an attempted solution that
>>>>> simply adds another layer of complexity. But maybe counsel's response to
>>>>> the question I raised yesterday will answer the point.
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> Cheers,
>>>>>
>>>>>
>>>>> Chris
>>>>>
>>>>> On 30 Apr 2015, at 09:38 , Chris Disspain <ceo at auda.org.au
>>>>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>>>>>
>>>>> Thanks Greg. Clear and understood.
>>>>>
>>>>> What will the control mechanisms be between the ccNSO and its alter
>>>>> ego and how will they be enforced?
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> Cheers,
>>>>>
>>>>> Chris
>>>>>
>>>>> On 30 Apr 2015, at 09:28 , Greg Shatan <gregshatanipc at gmail.com
>>>>> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>> wrote:
>>>>>
>>>>> Chris,
>>>>>
>>>>> Please let me try to clarify my understanding of what is currently
>>>>> being proposed (in draft).  The SO/ACs will not be "converted" into legal
>>>>> entities.  Rather, a "mirror" or "alter ego" entity will be set up for each
>>>>> SO/AC, likely as a unincorporated association (which is a recognized legal
>>>>> entity under California law).  Each SO/AC will control its alter ego. This
>>>>> is quite similar to the relationship between the ASO and the NRO.  The
>>>>> SO/ACs will continue to exist and will perform and operate as they
>>>>> currently do.  The legal entities will be the members (or designators,
>>>>> should that route be chosen) of ICANN, with the specific rights and powers
>>>>> ascribed to them in that capacity by statute and bylaw.
>>>>>
>>>>> Technically, the unincorporated associations only need a minimum of
>>>>> two members, so any "members" of a SO/AC who don't wish to be members of
>>>>> the alter ego won't need to be.  The control arrangements between the SO/AC
>>>>> and the alter ego will ensure that all "members" of the SO/AC (and even
>>>>> non-members, such as non-ccNSO ccTLDs, if desired) get the appropriate
>>>>> "say" in any decisions that are to be carried out by the alter ego.
>>>>>
>>>>> Best regards,
>>>>>
>>>>> Greg
>>>>>
>>>>>
>>>>>
>>>>> On Wed, Apr 29, 2015 at 6:40 PM, Chris Disspain <ceo at auda.org.au
>>>>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>>>>>
>>>>>> Jordan,
>>>>>>
>>>>>> Apologies for taking so long to respond!
>>>>>>
>>>>>> Nobody is proposing converting the SOs and ACs to anything - at all -
>>>>>> anywhere.
>>>>>>
>>>>>>
>>>>>> I'm confused. Greg seems o think that's exactly what was being
>>>>>> proposed. Do we have clarity on this yet?
>>>>>>
>>>>>> I'll respond to the balance of your points later today.
>>>>>>
>>>>>>
>>>>>>
>>>>>> Cheers,
>>>>>>
>>>>>>
>>>>>> Chris
>>>>>>
>>>>>> On 22 Apr 2015, at 16:02 , Jordan Carter <jordan at internetnz.net.nz
>>>>>> <javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');>> wrote:
>>>>>>
>>>>>> Hi all, hi Chris:
>>>>>>
>>>>>> On 22 April 2015 at 11:07, Chris Disspain <ceo at auda.org.au
>>>>>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>>>>>>
>>>>>>> Hi Keith,
>>>>>>>
>>>>>>> As promised I set out in brief below some of the reasons why, in
>>>>>>> respect to the membership model and any model requiring the SOs and ACs to
>>>>>>> convert to legal entities, I have serious concerns and why I referred to
>>>>>>> significant sacrifices.
>>>>>>>
>>>>>>
>>>>>> Nobody is proposing converting the SOs and ACs to anything - at all -
>>>>>> anywhere.
>>>>>>
>>>>>> The only proposal that I've seen from the lawyers is that if
>>>>>> membership was the model chosen, legal personality would need to be
>>>>>> created. The actors in the various SOs and ACs would, in exercising
>>>>>> membership prerogatives, act through the unincorporated associations.
>>>>>>
>>>>>> The lawyers have also been clear that even in a designator model,
>>>>>> it's preferable to create legal personality along those lines.
>>>>>>
>>>>>> I think it is really really really important for everyone involved in
>>>>>> this effort to be very precise and clear about what we are discussing and
>>>>>> what we aren't. So I am writing this so directly in order that if my
>>>>>> understanding is wrong, it gets picked up pronto! :-)
>>>>>>
>>>>>> GAC
>>>>>>>
>>>>>>> The current recommended model does not provide any viable solution
>>>>>>> for dealing with the GAC. It seems obvious to me that the governments
>>>>>>> involved in the GAC are not going to agree to form an unincorporated
>>>>>>> association under Californian law. If I'm right then presumably the GAC
>>>>>>> would remain as an advisory committee and would not be able to have a vote
>>>>>>> in any of the escalation mechanisms. That may be fine as the GAC may not
>>>>>>> want to have a vote anyway.
>>>>>>>
>>>>>>
>>>>>> Indeed it may not. Being able to offer advice on public policy issues
>>>>>> to the ICANN Board and to appoint a non-voting liaison member to the Board.
>>>>>> I am looking forward to hearing their views on this (and many other
>>>>>> questions).
>>>>>>
>>>>>>
>>>>>>> However I see a serious incompatibility between the members' powers
>>>>>>> and the standing of GAC advice to the Board. It's not that GAC advice is or
>>>>>>> indeed should be invariably followed but currently where GAC advice is at
>>>>>>> odds with the position of others in the community the advice carries
>>>>>>> significant weight and there is a bylaw mandated process for rejecting the
>>>>>>> advice through a process which takes around 6 months. The change to a
>>>>>>> members based structure would mean that for certain issues the actions of
>>>>>>> members will trump GAC advice. So there is a significant shift in the
>>>>>>> carefully constructed balance of power. Now, many of us may think that such
>>>>>>> a shift is no bad thing but I wonder whether the governments of the world
>>>>>>> are going to agree?
>>>>>>>
>>>>>>
>>>>>> I don't understand this. I have not seen any hint of anyone
>>>>>> suggesting that a power that Members should have includes overriding
>>>>>> decisions on matters of public policy, which is the advice that the GAC
>>>>>> gives the Board and which the bylaws would continue to require it to give
>>>>>> due deference to (perhaps with an adjustment about when that reconciliation
>>>>>> process has to happen, should GAC change its operating principles).
>>>>>>
>>>>>> If GAC advice on public policy matters led to changes in the bylaws,
>>>>>> or the inclusion by the Board of business or strategic plans or budgets,
>>>>>> then the new powers might have an impact. But all that would require the
>>>>>> Board and the GAC to do is to persuade the broader ICANN system, or at
>>>>>> least some of it, that their ideas are ones that should be pursued.
>>>>>>
>>>>>> Does that feel like a fundamental issue to you? It doesn't to me.
>>>>>>
>>>>>>
>>>>>>> ccTLDs
>>>>>>>
>>>>>>> When we set up the ccNSO and when we did the structural review of it
>>>>>>> some time thereafter there was considerable discussion about how it could
>>>>>>> be structured precisely to avoid the need for ccTLDs to join anything.
>>>>>>> There was even significant concern about having to fill out a form and
>>>>>>> whether that implied the existence of some organisation. The concerns
>>>>>>> included joining something in the jurisdiction of the US and whether that
>>>>>>> would make a ccTLD manager in any way subject to US law, the possibility of
>>>>>>> being sued in the US because the manager would be deemed to have a presence
>>>>>>> there, how such a structure would be funded (especially if it was sued),
>>>>>>> whether there was any liability on 'officers' of the entity and so on. I
>>>>>>> believe that many of these concerns will still exist for many ccTLDs.
>>>>>>>
>>>>>>
>>>>>> They may or may not. But in that fifteen-years-ago debate, were there
>>>>>> any facts on the table about those questions? Or was it all a bit of a mess
>>>>>> on many fronts? Because ICANN in 2015 is, better or worse, a very different
>>>>>> beast to ICANN in ~ 2000.
>>>>>>
>>>>>> Perhaps more importantly, exercising some rights through an
>>>>>> unincorporated association would remain a choice for every ICANN
>>>>>> participant. Nobody would be forced to be involved. It isn't like a "Join
>>>>>> ICANN and have no say" - all the current structures for the "business of
>>>>>> the business" would remain in place.
>>>>>>
>>>>>> From the legends I have heard about this early phase in ICANN's
>>>>>> history, the fundamental concern was of a power-grab on the corporation's
>>>>>> part. Since these reforms make such a power-grab harder (and let's remember
>>>>>> that the end of the NTIA contract makes it easier...), I'd expect ccTLDs
>>>>>> and others to look at them with quite some interest.
>>>>>>
>>>>>>
>>>>>>
>>>>>>> Further, quite a number of ccTLD managers are departments of the
>>>>>>> relevant government or quasi-government bodies. Not everyone runs their
>>>>>>> ccTLD with the degree of freedom that .au, .ca, .uk and .nl are privileged
>>>>>>> to enjoy. I consider it highly unlikely that sovereign governments will
>>>>>>> permit a government department to join an association in the US (or any
>>>>>>> other country for that matter).
>>>>>>>
>>>>>>
>>>>>> They won't have to, to do what they do in ICANN today.
>>>>>>
>>>>>> The suggestion is they might have to if they want to take part in
>>>>>> exercising the accountability powers set out in our report that's going for
>>>>>> public comment.
>>>>>>
>>>>>> That said, there's a bit of an objective legal question here - which
>>>>>> is whether the decisions of these uninc associations can be forced to take
>>>>>> account of the views expressed in the ICANN bodies they shadow in making
>>>>>> their decisions. If they can (which I would analogise to the ccNSO taking
>>>>>> on board the views of non-member ccTLDs - and so I assume it is possible),
>>>>>> much of this debate becomes moot.
>>>>>>
>>>>>>
>>>>>> Finally -- I do think this is a really useful and constructive
>>>>>> discussion. As someone who is warm to the member approach, but who sees
>>>>>> huge benefits if we can manage a "no structural change" outcome, this is
>>>>>> just the convo we need to have.
>>>>>>
>>>>>> cheers,
>>>>>> Jordan
>>>>>>
>>>>>>
>>>>>>> At Large
>>>>>>>
>>>>>>> I don't know the answer to this but it strikes me that the structure
>>>>>>> may also be problematic for At Large community as opposed to ALAC. On that
>>>>>>> one over the ALAC folks to comment.
>>>>>>>
>>>>>>> There's more but I'm rushing for my flight now. Hope this gives you
>>>>>>> a flavour.
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> Cheers,
>>>>>>>
>>>>>>>
>>>>>>> Chris
>>>>>>>
>>>>>>> On 21 Apr 2015, at 20:46 , Chris Disspain <ceo at auda.org.au
>>>>>>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>>>>>>>
>>>>>>> Hi Keith,
>>>>>>>
>>>>>>> Thanks for the below. You ask a valid question and Kavouss has sent
>>>>>>> me an email asking the same.  I will respond in detail in the next 7 hours
>>>>>>> or so.
>>>>>>>
>>>>>>> Chris Disspain
>>>>>>> CEO - auDA
>>>>>>>
>>>>>>> On 21 Apr 2015, at 20:16, Drazek, Keith <kdrazek at verisign.com
>>>>>>> <javascript:_e(%7B%7D,'cvml','kdrazek at verisign.com');>> wrote:
>>>>>>>
>>>>>>> Thanks Chris, no apologies necessary...this is exactly the kind of
>>>>>>> dialogue needed to advance our work.
>>>>>>>
>>>>>>> Can you be more explicit about the "significant number of
>>>>>>> sacrifices that would need to be made in a membership scenario" that ccTLDs
>>>>>>> face? Particularly if any are unique to ccTLDs?
>>>>>>>
>>>>>>> Sacrifices may be needed (including from the Board) if we are to
>>>>>>> accomplish the community's broader goal of ensuring the ICANN Board and
>>>>>>> Staff are truly accountable to the ICANN community for the next decade. As
>>>>>>> such, it would be good to know, as early as possible, what those sacrifices
>>>>>>> might be.
>>>>>>>
>>>>>>> In simple terms, I agree that determining what can and cannot be
>>>>>>> accomplished within the existing structure is a worthwhile exercise and
>>>>>>> will help to inform the community.
>>>>>>>
>>>>>>> Based on our work and the relevant independent legal analysis to
>>>>>>> date, it appears to me that the current construct has significant gaps and
>>>>>>> shortcomings and won't deliver on our goals, but I support seeking further
>>>>>>> advice on the topic from our independent legal advisors.
>>>>>>>
>>>>>>> Thanks and regards,
>>>>>>> Keith
>>>>>>>
>>>>>>> On Apr 21, 2015, at 5:08 AM, Chris Disspain <ceo at auda.org.au
>>>>>>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>>>>>>>
>>>>>>> Thanks Keith.
>>>>>>>
>>>>>>> I apologise for pinging back and forth on this but I hope the list
>>>>>>> will appreciate that it as an indication of how important auDA believes
>>>>>>> this point is.
>>>>>>>
>>>>>>> As I said on the CCWG call last week, I have serious concerns about
>>>>>>> the viability of the lawyers' recommended structural changes (at least from
>>>>>>> a cc point of view) and want to be crystal clear about what we can do or
>>>>>>> cannot do within the current structure.
>>>>>>>
>>>>>>> For a ccTLD there are a significant number of sacrifices that would
>>>>>>> need to be made in a membership scenario and I don't believe the cc
>>>>>>> community can decide whether those sacrifices are worth making unless we
>>>>>>> can weigh them against what we would be able to achieve using the current
>>>>>>> structure.
>>>>>>>
>>>>>>> I think that is essential that our output to the community contains
>>>>>>> a clear explanation of what the status quo can achieve. If it does not then
>>>>>>> IMO it is impossible to judge the other scenarios.
>>>>>>>
>>>>>>> I appreciate your second para and, as a lawyer, I know that time for
>>>>>>> a response is required. I also appreciate the time constraints under which
>>>>>>> we are operating. But we will lose more time if the result of our document
>>>>>>> is a series of questions about whether there really is a need to make the
>>>>>>> significant changes being recommended.
>>>>>>>
>>>>>>> In simple terms 'not nearly enough' is not an acceptable response.
>>>>>>> How can I know that "it" is not nearly enough unless I know what "it" is?
>>>>>>>
>>>>>>> Chris Disspain
>>>>>>> CEO - auDA
>>>>>>>
>>>>>>> On 21 Apr 2015, at 18:37, Drazek, Keith <kdrazek at verisign.com
>>>>>>> <javascript:_e(%7B%7D,'cvml','kdrazek at verisign.com');>> wrote:
>>>>>>>
>>>>>>>
>>>>>>> Chris,
>>>>>>>
>>>>>>> I believe the answer to your question regarding the "no change
>>>>>>> scenario" and "what the current configuration can achieve" is, "Not nearly
>>>>>>> enough."
>>>>>>>
>>>>>>> That said, I think it's a reasonable question and it should be
>>>>>>> referred to the CCWG's lawyers and they should be permitted reasonable time
>>>>>>> to consider and respond.
>>>>>>>
>>>>>>> Regards,
>>>>>>> Keith
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> Sent from my iPhone
>>>>>>>
>>>>>>> On Apr 21, 2015, at 4:09 AM, Chris Disspain <ceo at auda.org.au
>>>>>>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>>>>>>>
>>>>>>> Greg,
>>>>>>>
>>>>>>> Thanks. At the risk of repeating myself, whilst I understand what
>>>>>>> you are saying, it is precisely the no change scenario that I am seeking
>>>>>>> clarity on. I accept that the current configuration may not be "a very good
>>>>>>> vehicle for many of the enhanced powers" but I want clarity on what the
>>>>>>> current configuration CAN  achieve. I don't believe we have that yet.
>>>>>>>
>>>>>>> Chris Disspain
>>>>>>> CEO - auDA
>>>>>>>
>>>>>>> On 21 Apr 2015, at 17:35, Greg Shatan <gregshatanipc at gmail.com
>>>>>>> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>> wrote:
>>>>>>>
>>>>>>> Chris,
>>>>>>>
>>>>>>> The simple answer is that the SOACs as currently configured are not
>>>>>>> a very good vehicle for many of the enhanced powers we seek. Once you make
>>>>>>> them into members and give them legal personhood everything else becomes
>>>>>>> much easier.
>>>>>>>
>>>>>>> However, you assumed no change to the SOACs, which made the answers
>>>>>>> much harder.
>>>>>>>
>>>>>>> Greg
>>>>>>>
>>>>>>> On Tuesday, April 21, 2015, Chris Disspain <ceo at auda.org.au
>>>>>>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
>>>>>>>
>>>>>>>> Greg, All,
>>>>>>>>
>>>>>>>> With respect, I think we are overcomplicating the issue. I simply
>>>>>>>> want to gain a base line for the discussion about any changes necessary  to
>>>>>>>> achieve what we want. We agreed on jurisdiction that if we can get
>>>>>>>> acceptable escalations and remedies without changing jurisdiction then we
>>>>>>>> should leave well alone for now, I think we should apply the same principle
>>>>>>>> here. I am clear what the lawyers recommend we do BUT I am not clear about
>>>>>>>> what we can do or what compromises we need to make if we were to maintain
>>>>>>>> the current structure. I think that is a key part of our deliberations.
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>> Cheers,
>>>>>>>>
>>>>>>>>
>>>>>>>> Chris
>>>>>>>>
>>>>>>> --
>>>>>> Jordan Carter
>>>>>>
>>>>>> Chief Executive
>>>>>> *InternetNZ*
>>>>>>
>>>>>> 04 495 2118 (office) | +64 21 442 649 (mob)
>>>>>> jordan at internetnz.net.nz
>>>>>> <javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');>
>>>>>> Skype: jordancarter
>>>>>>
>>>>>> *A better world through a better Internet *
>>>>>>
>>>>>> _______________________________________________
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>>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>
>>>>>>
>>>>>>
>>>>>> _______________________________________________
>>>>>> Accountability-Cross-Community mailing list
>>>>>> Accountability-Cross-Community at icann.org
>>>>>> <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community at icann.org');>
>>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>
>>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Accountability-Cross-Community mailing list
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>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>
>>>>>
>>>>>
>>>>
>>>
>>
>>
>
>

-- 
Jordan Carter
Chief Executive, InternetNZ

+64-21-442-649 | jordan at internetnz.net.nz

Sent on the run, apologies for brevity
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