[CCWG-ACCT] Question regarding UAs
Alan Greenberg
alan.greenberg at mcgill.ca
Wed May 20 05:21:49 UTC 2015
Avri, I think that you are generally correct. We are putting this
entire infrastructure in place because we want to be able to take
ICANN or the Board to court if they do not follow the rules. I tend
to agree with the auDA comment that if it ever gets to that stage, we
are REALLY in trouble, and a simple court decision is not likelt to fix it.
But that nothwithstanding, we supposedly ned that UA because they can
take legal action. But if the UA representatives do not listen to the
SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has
no legal persona. So we are again left with a discontinuity where
something is largely unenforceable and we have to take it on faith
that they will do the right thing.
Of course, the UA reps and the Board members we select are basically
drawn from the same pool, perhaps separated by a few years.
The difference between a Board member and a UA rep is the Board
member has a duty to the corporation, and the UA rep can, in theory,
be required to take instruction from the SO/AC. But enforcing that
theory may be the rub.
Alan
At 20/05/2015 12:41 AM, Avri Doria wrote:
>Hi,
>
>I think I understand the argument about members becoming that to which
>ICANN, and its Board, are responsible and accountable. From that
>perspective it sounds really good.
>
>What I have having trouble understanding is an accountability structure
>were there is a discontinuity between the SOAC and the UA. If each of
>the Board designating SOAC were the UA, it think I would understand.
>But I just do not see how the UA are accountable to the people and
>organizations that participate in each of the SOAC. Yes, the SOAC
>designates it UA representative, but how is (s)electing one of these any
>more accountable than (s)electing the Board as we do now. Don't we just
>move the perceived/possible unaccountability down a layer in the hierarchy?
>
>I think I am as comfortable with complexity as the next person. And I
>understand how in computer science any problem can solved by adding
>another layer of indirection, but in this case the extra layer we are
>creating does not seem to really be accountable to anyone but itself,
>except by (s)election procedures.
>
>I am sure I am missing some critical bit of understanding and hope
>someone can explain the chain of accountability in the membership
>model. I feel that we are still hand-waving a bit in the explanations.
>In a sense it seems as if we are creating a 'council' that is omnipotent
>in the powers it is given, except that they can somehow be replaced.
>
>Thanks and apologies for my persistent confusion.
>
>avri
>
>
>
>On 20-May-15 01:14, Jordan Carter wrote:
> > 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
> > <mailto: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
> > <tel:%2B44%2020%207645%203523>
> > Head of Public Affairs | Read the LINX Public Affairs blog
> > London Internet Exchange | http://publicaffairs.linx.net/
> >
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> >
> >
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> >
> >
> > --
> > Jordan Carter
> >
> > Chief Executive
> > *InternetNZ*
> >
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> >
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> >
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