[CCWG-ACCT] Question regarding UAs

[Jordan Carter]

Hi all

This thread is useful to tease out some of the questions and concerns and
confusions with the UA model, and as rapporteur for the WP responsible for
refining this part of the proposal I am reading it avidly.

I just want to take the opportunity to remind us all why membership (or
something analogous) is an important aspect of the reforms we are proposing
- no matter the precise details.

At the moment without members, ICANN is fundamentally controlled by the
Board. The only external constraint is the IANA functions contract with
NTIA. The long list of community concerns and examples detailed by our
earlier work in this CCWG shows that even with that constraint,
accountability isn't up to scratch.

We are working on a settlement without that NTIA contract. Accountability
has to get better even *with* the contract. Fundamentally better, without
it.

Either we have a membership structure or some other durable approach that
firmly embeds the stewardship of ICANN and the DNS in the ICANN community,
or... we remain with Board control.

Given ICANN's history, anyone who is advocating a continuation of Board
control is arguing for a model that can't be suitably accountable, and that
seems highly likely to fail over time, with real risks to the security and
stability of the DNS.

A real, fundamental source of power over the company absent the contract
*has* to be established. The membership model is the most suitable one to
achieve that that we have considered so far.

So: we need to be creative and thoughtful in how we make that model work in
a fashion that disrupts ICANN's general operation as little as possible.
But the key there is "as possible." Real change is needed and much
refinement and comment is needed.

If there are proposals to achieve the same shift in control from ICANN the
corporation to ICANN the community, I hope they come through in the comment
period. So far, none have - but there are still two weeks of comments to go.

cheers
Jordan


On 20 May 2015 at 10:45, Malcolm Hutty <malcolm at linx.net> wrote:

> This whole thread seems to have massively overcomplicated the question.
>
>
> Unless I have missed something, the only reason we need "members" is to
> stand as plaintiff-of-record in a lawsuit against the ICANN Board
> complaining that the Board has failed to adhere to the corporations
> bylaws. Such a lawsuit would in reality be conducted by an SO or AC, but
> a person with legal personality needs to act as plaintiff-of-record.
>
> Why not simply proceed, as Samantha suggested, with the SOACs' Chairs as
> the members of the corporation? Could the Articles (or Bylaws, as
> appropriate) not simply identify the SOACs' Chairs as the members, ex
> officio and pro tempore?
>
> An SOAC Chair that refused to act as plaintiff-of-record when required
> to do so by his SOAC could simply be replaced. Likewise a Chair that
> went rogue and initiated a lawsuit without their consent.
>
> You can't make the SOAC a member without turning them into UAs, with all
> the attendent complexity. But I don't see that there should be any such
> problem with designating the chair of a SOAC, who will be a natural
> person, as a member of the corporation; the fact that the SOAC is not a
> UA is then irrelevant.
>
> In the event that there were any dispute as to whether a particular
> person is in truth an SOAC Chair, this would surely be a simple
> preliminary matter of fact for the court. It is surely beyond dispute
> that if the Articles designated "Alan Greenberg" as the member, it would
> be a matter of fact as to whether or not the person before the court was
> indeed Alan Greenberg; surely it is the same as to whether the person
> before the court is "the current Chair of ALAC", if that should be what
> is specified in the Articles?
>
> Malcolm.
>
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
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-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

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