[CCWG-ACCT] Question regarding UAs
Jordan Carter
jordan at internetnz.net.nz
Wed May 20 05:33:57 UTC 2015
We need legal persons to be members of ICANN.
They can be individual humans or they can be organisations.
UAs are the lightest touch, most easily controlled, non-human form of
person that can fit this mould.
I do not understand the propensity of parts of our community to
over-complicate things that look reasonably straight forward from other
points of view. Has ICANN always been like this? (Answers own question - it
can't have been, otherwise it would never be organised the way it is
today....)
cheers
Jordan
On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg at mcgill.ca> wrote:
> 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/
>> >
>> > London Internet Exchange Ltd
>> > 21-27 St Thomas Street, London SE1 9RY
>> >
>> > Company Registered in England No. 3137929
>> > Trinity Court, Trinity Street, Peterborough PE1 1DA
>> >
>> >
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>> >
>> >
>> > --
>> > Jordan Carter
>> >
>> > Chief Executive
>> > *InternetNZ*
>> >
>> > 04 495 2118 (office) | +64 21 442 649 (mob)
>> > jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
>> > Skype: jordancarter
>> >
>> > /A better world through a better Internet /
>> >
>> >
>> >
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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
*A better world through a better Internet *
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