[CCWG-ACCT] Question regarding UAs
Alan Greenberg
alan.greenberg at mcgill.ca
Thu May 21 04:39:35 UTC 2015
The scenario is all the more interesting in light
of Jan Scholte's regular reminders that we need
to consider accountability of the community as well.
Alan
At 20/05/2015 09:45 PM, Chris Disspain wrote:
>Becky, Keith, Jordan, All,
>
>Thank you. I think Becky is spot on and has
>illustrated to me that I am not being as clear as I need to be.
>
>First, let’s be clear what we mean by “the
>Board’s responsibility to act in the best
>interests of the corporation”. The best
>interests of the corporation are defined by
>ICANN’s mission. And the fiduciary duty of the
>Board means (as Sidley have said in one of their
>memos) that Directors are obligated by these
>duties to disregard a process or decisions that
>do not comply with law or the mission or core
>purpose of ICANN as articulated in the bylaws.
>This in turn means that the community, even with
>bylaw or contractual provisions, cannot compel
>the board to act in a manner contrary to the duties.
>
>Second, I would like to use a step-by-step
>scenario to explain where my concerns lie. Under
>the CCWG’s currently proposed mechanisms:
>
>1. The community, pursuant to powers defined in
>a “fundamental bylaw”, and through a vote of
>that meeting the required threshold for support, directs the Board to do X
>2. The Board refuses to do X because it
>maintains that X is outside of the mission of ICANN
>3. The community triggers escalation mechanisms
>4. Escalation proceeds to binding arbitration
>(as defined by another fundamental bylaw)
>5. The arbitrator finds in favour of the community and directs ICANN to do X
>6. The Board refuses to act, citing, again, that
>it believes the action is outside of ICANN’s mission
>7. After the necessary community votes etc., the
>community now heads to court. In the State of California.
>
>
>As I understand it, the role of the court in
>this scenario would be to determine whether the
>Board is acting in a way that is serving the
>public interest within ICANN’s mission. It would
>not be to decide whether, on balance, the
>community was ‘more right’ than the Board.
>
>Right now as a global multi-stakeholder body we
>decide the nuances of the meaning of ICANN’s
>mission and the way ICANN acts under that
>mission by using the multi-stakeholder process
>and by compromise and nuanced decision making.
>
>If we agree to the CCWG recommendations we will
>not be handing ultimate authority to the members
>but rather we will be handing ultimate authority
>to a state based American court and allowing it
>to make binding and precedent setting decisions
>about the interpretation of ICANN’s mission.
>
>Does the ICANN community really want the
>specific nuances of ICANN’s mission to be held
>up to scrutiny and have decisions made, at the
>highest level, through such a mechanism? Whilst
>that may give comfort to, for example, US
>members of the intellectual property community
>or US listed registries, it gives me no comfort whatsoever.
>
>
>Cheers,
>
>
>Chris Disspain | Chief Executive Officer
>
>.au Domain Administration Ltd
>
>T: +61 3 8341 4111 | F: +61 3 8341 4112
>
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>>On 21 May 2015, at 07:51 , Burr, Becky
>><<mailto:Becky.Burr at neustar.biz>Becky.Burr at neustar.biz> wrote:
>>
>>The “enforceability" issue is not about
>>litigation at all, and it isn’t really about
>>whether the Board or some newly invented group
>>is more likely to get it right. Rather, it’s
>>about checks and balances. Without the
>>membership structure, the revised bylaws that
>>empower the community to block certain actions,
>>for example, are by definition advisory – they
>>impose no legal obligation whatsoever on the
>>Board and staff. I don’t dispute that the
>>Board would have a compelling interest in
>>respecting community input, but as a legal
>>matter without the membership structure, the
>>Board would be required to treat any community
>>vote to block, for example, as merely advisory
>>and would have an affirmative obligation to do
>>what it concludes is consistent with its
>>fiduciary duty. The membership model
>>affirmatively shifts some of that fiduciary
>>responsibility to the community. It’s not a
>>statement of who is right or wrong, but who has
>>authority. Steve raises a reasonable question
>>about how the members/unincorporated
>>associations are accountable to their
>>respective communities. But IMHO, the
>>legitimate questions and concerns in this
>>debate are getting obscured by polarizing
>>language and assertions that it’s inappropriate
>>to express a particular point of view.
>>
>>The argument that there are no examples of
>>situations that did result or would have
>>resulted in the community acting as one against
>>an action or decision of the ICANN Board.” The
>>community has never had any authority or tool
>>to do so, so the fact that it never has is
>>irrelevant and the assertion that it would not
>>have is speculation. I certainly would have
>>tried to get the community to overturn the
>>Board’s decision to abandon the substantive
>>standard for IRPs in favor of the “good faith”
>>test. As it happens, none of the existing
>>review and redress mechanisms would have worked
>>in that case, and they probably wouldn’t work in the future either.
>>
>>
>>
>>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 /
>><mailto:becky.burr at neustar.biz>becky.burr at neustar.biz / www.neustar.biz
>>
>>From: Steve DelBianco
>><<mailto:sdelbianco at netchoice.org>sdelbianco at netchoice.org>
>>Date: Wednesday, May 20, 2015 at 12:37 PM
>>To: "Chartier, Mike S"
>><<mailto:mike.s.chartier at intel.com>mike.s.chartier at intel.com>,
>>Steve Crocker
>><<mailto:steve at shinkuro.com>steve at shinkuro.com>,
>> Keith Drazek <<mailto:kdrazek at verisign.com>kdrazek at verisign.com>
>>Cc: Accountability Community
>><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>>Subject: Re: [CCWG-ACCT] Question regarding UAs
>>
>>I don’t think there’s any question that the
>>Board’s primary duty (not their only duty) is
>>to ICANN the Corporation. In addition to
>>Mike’s citation of ICANN bylaws Section 7
>>(below), see ICANN’s Management Operating Principles (2008):
>>>
>>>"The third and perhaps most critical point of
>>>tension is between the accountability to the
>>>participating community to perform functions
>>>in keeping with the expectations of the
>>>community and the corporate and legal
>>>responsibilities of the Board to meet its fiduciary obligations.”
>>>
>>>Source: ICANN Accountability & Transparency
>>>Frameworks and Principles, Jan-2008, p.5, at
>>><https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_acct-2Dtrans-2Dframeworks-2Dprinciples-2D10jan08-2Den.pdf&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=-nHIJ38MbHZo2QiXUiLPqBi6YeaesFEbRqTO3RL3Jew&e=>https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf
>>>
>>
>>From: "Chartier, Mike S"
>>Date: Wednesday, May 20, 2015 at 9:56 AM
>>To: Steve Crocker, Keith Drazek
>>Cc: Accountability Cross Community
>>Subject: Re: [CCWG-ACCT] Question regarding UAs
>>
>>No comment on actual practice, but from a
>>textual basis (which is what matters now since
>>we are debating new text), I can’t see any
>>inconsistency between the following statements:
>>>“Directors shall serve as individuals who have
>>>the duty to act in what they reasonably
>>>believe are the best interests of ICANN and
>>>not as representatives of the entity that
>>>selected them, their employers, or any other organizations or constituencies.”
>>>“the ICANN Board, which has a fiduciary
>>>obligation to first serve the interests of the corporation,”
>>>
>>
>>From:<mailto:accountability-cross-community-bounces at icann.org>accountability-cross-community-bounces at icann.org
>>[<mailto:accountability-cross-community-bounces at icann.org>mailto:accountability-cross-community-bounces at icann.org]
>>On Behalf Of Steve Crocker
>>Sent: Wednesday, May 20, 2015 9:47 AM
>>To: Drazek, Keith
>>Cc: Accountability Cross Community
>>Subject: Re: [CCWG-ACCT] Question regarding UAs
>>
>>I didn’t take it personally. I took it as a
>>factually inaccurate statement that creates
>>misunderstanding. Future boards are bound by
>>the same rules as the past and current
>>boards. The language you used is taken by many
>>as a basis for believing there is a significant
>>difference in alignment toward public
>>responsibility between the ICANN Board and some
>>newly invented grouping of community
>>members. It ain’t so and it’s inappropriate to suggest so.
>>
>>Steve
>>
>>
>>On May 20, 2015, at 9:39 AM, Drazek, Keith
>><<mailto:kdrazek at verisign.com>kdrazek at verisign.com> wrote:
>>>
>>>Steve,
>>>
>>>With all due respect, I think you’re taking
>>>this too personally and/or making it too
>>>personal. This is not about the current ICANN Board.
>>>
>>>None of us know what future ICANN Boards will
>>>do, or what future ICANN Boards will permit
>>>ICANN’s management to do. Will future Boards
>>>always exercise appropriate oversight over
>>>management? Could there be instances where
>>>ICANN’s legal counsel advises a future Board
>>>to make a decision that is counter to the
>>>interests of the community to protect the
>>>financial interests of the corporation?
>>>
>>>I see the proposed community membership
>>>structure simply as a check on the power of
>>>the Board, nothing more. It’s not about
>>>“controlling” or replacing the Board. The
>>>Board has its legitimate function, but its
>>>decisions cannot be unchallengeable. The
>>>community must have the ability to tell the
>>>Board it got a decision wrong and to enforce
>>>the will of the multi-stakeholder community in
>>>rare/limited instances and based on a very
>>>high threshold of community agreement/consensus.
>>>
>>>I would certainly trust the proposed community
>>>members, representing their SOs and ACs, to be
>>>balanced, inclusive and trustworthy in
>>>protecting the interests of the overall
>>>community -- in their role as the
>>>aforementioned check on the powers of the Board. Not as a replacement.
>>>
>>>Would you trust a future Board of sixteen
>>>unknown individuals more than you trust the
>>>multi-stakeholder, bottom-up, consensus-based
>>>community and process? It appears so.
>>>
>>>I stand by and reaffirm my previous email. I hope my clarification helps.
>>>
>>>Sincerely,
>>>
>>>Keith
>>>
>>>
>>>From: Steve Crocker [<mailto:steve at shinkuro.com>mailto:steve at shinkuro.com]
>>>Sent: Wednesday, May 20, 2015 8:27 AM
>>>To: Drazek, Keith
>>>Cc: Stephen D. Crocker; Chris Disspain;
>>>Accountability Cross Community;
>>><mailto:mshears at cdt.org>mshears at cdt.org;
>>><mailto:egmorris1 at toast.net>egmorris1 at toast.net
>>>Subject: Re: [CCWG-ACCT] Question regarding UAs
>>>
>>>
>>>On May 20, 2015, at 7:44 AM, Drazek, Keith
>>><<mailto:kdrazek at verisign.com>kdrazek at verisign.com> wrote:
>>>
>>>
>>>
>>>Hi Chris,
>>>
>>>I think there's a fundamental flaw in your
>>>assessment. You appear to be looking at this
>>>question through the lens of the past and
>>>present, where NTIA holds the enforcement
>>>function ("enforceability") through its
>>>ability to rebid and transfer the IANA
>>>functions contract if the ICANN Board and
>>>management acts inappropriately. That is the
>>>existing and necessary check on the Board's decision-making power.
>>>
>>>Without NTIA in its current role, the
>>>community MUST have the ability to check the
>>>Board's power, and the only way to secure that
>>>check is to create legal enforceability.
>>>Otherwise, the Board has ultimate authority,
>>>even if its decisions are inconsistent with
>>>the interests and desires of the community ICANN is supposed to serve.
>>>
>>>You are proposing a transfer of power from
>>>NTIA to the ICANN Board, which has a fiduciary
>>>obligation to first serve the interests of the
>>>corporation. Alternatively, proponents of
>>>legal enforceability are in favor of
>>>transferring final authority to ICANN's multi-stakeholder community.
>>>
>>>Keith, Edward and Edward,
>>>
>>>We have covered the point above several times
>>>and it’s long past time to stop throwing this
>>>half-trust around. Yes, ICANN is legally a
>>>corporation, and, yes, directors of a
>>>corporation have a duty to protect the
>>>corporation. But that generality has a far
>>>different meaning in a for profit corporation
>>>like Verisign than it does in a not-for-profit
>>>public benefit corporation like ICANN. The
>>>directors are obliged to pursue the purpose
>>>and mission stated in the incorporation papers
>>>and the bylaws. The directors serve the
>>>community, and we do so by exercising
>>>oversight over the corporation toward that end.
>>>
>>>There will always be differences of opinion
>>>about the particular details, but those sorts
>>>of differences of opinion will arise in *any*
>>>governance model. The prevailing assumption
>>>in much of the correspondence on this list is
>>>that the proposed members will somehow be more
>>>balanced, more inclusive and more trustworthy
>>>in protecting the interests of the overall
>>>community than the ICANN Board is. That’s
>>>simply false. And I think you know that it is.
>>>
>>>Please correct yourself and apologize.
>>>
>>>Thanks,
>>>
>>>Steve
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>We should all be looking at this through the
>>>lens of the future, when NTIA no longer holds
>>>the tether and is only participating through
>>>the GAC. How do we, the multi-stakeholder
>>>community, ensure that ICANN and its future
>>>Boards and management are truly accountable once the NTIA back-stop is gone?
>>>
>>>The answer is to ensure the Board's decisions,
>>>in very limited areas, can be challenged and
>>>overturned by a significant majority of the
>>>community. We need to protect against the
>>>"catastrophic" scenario you referenced.
>>>According to our independent legal advisors,
>>>the best (and perhaps only) way to guarantee
>>>this is through legal enforceability.
>>>
>>>You asked, "Is addressing this most unlikely
>>>scenario worth the significant structural
>>>changes a membership model would require?" I
>>>believe the answer is yes. Not only worth it, but necessary.
>>>
>>>Regards,
>>>Keith
>>>
>>>
>>>
>>>On May 20, 2015, at 2:40 AM, Chris Disspain
>>><<mailto:ceo at auda.org.au>ceo at auda.org.au> wrote:
>>>>For clarity, the last sentence of paragraph 8 below should read:
>>>>
>>>>"However, I cannot think of a single example
>>>>of a failure throughout the history of ICANN
>>>>that did result or would have resulted in the
>>>>community acting as one against an action or decision of the ICANN Board."
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>Cheers,
>>>>
>>>>
>>>>
>>>>Chris
>>>>
>>>>>On 20 May 2015, at 16:13 , Chris Disspain
>>>>><<mailto:ceo at auda.org.au>ceo at auda.org.au> wrote:
>>>>>
>>>>>Jordan, All,
>>>>>
>>>>>Thank you Jordan, for attempting to bring
>>>>>some focus to the current discussion about
>>>>>the UA model, membership structures and all of the related issues.
>>>>>
>>>>>First of all, I want to acknowledge that I
>>>>>concur with you on a number points.
>>>>>
>>>>>I agree that we need to develop a model that
>>>>>disrupts ICANN’s operation as little as
>>>>>possible. We can argue about how much
>>>>>disruption is either possible or preferable, but the principle is agreed.
>>>>>
>>>>>I also agree that levels of accountability
>>>>>are not “up to scratch” and, irrespective of
>>>>>the model we arrive at post-transition,
>>>>>these need to be improved. Many of the
>>>>>improvements proposed by the CCWG: to the
>>>>>IRP, reconsideration mechanisms and the role
>>>>>of the ombudsman, the introduction of
>>>>>fundamental bylaws and binding arbitration,
>>>>>and the empowerment of the community to
>>>>>spill the ICANN Board, are also supported.
>>>>>
>>>>>However, where I disagree with you is in
>>>>>respect to the absolute need for an
>>>>>additional mechanism, to supersede the
>>>>>current IANA functions contract, in order to
>>>>>ensure that the community can ‘control’ the
>>>>>Board because it has the right to bring a legal action in a US court.
>>>>>
>>>>>I disagree with the characterisation that
>>>>>the purpose of the CCWG’s work is to wrest
>>>>>“control” from the ICANN Board and deliver
>>>>>it to the community. From your email, I
>>>>>gather that you are fundamentally tying the
>>>>>concept of control to “enforceability”,
>>>>>neither of which are goals for the current
>>>>>process. Rather, I believe we are aiming to
>>>>>deliver a structure where ICANN and its
>>>>>Board are held accountable to the community,
>>>>>via the number of improvements I mentioned above.
>>>>>
>>>>>The need to assert absolute “control” or
>>>>>enforceability could only arise in the most
>>>>>catastrophic of circumstances. If we assume
>>>>>a situation where proposed mechanisms for
>>>>>escalation, independent review, binding
>>>>>arbitration and direct instruction by the
>>>>>SOs and ACs are not acknowledged by ICANN,
>>>>>wouldn’t the entire multi-stakeholder model
>>>>>be irreparably broken? Is addressing this
>>>>>most unlikely scenario worth the significant
>>>>>structural changes a membership model would require?
>>>>>
>>>>>Further, you refer to a “long list” of
>>>>>community concerns about ICANN’s current
>>>>>operations. I wonder whether these concerns
>>>>>are actually held by individuals (or
>>>>>individual constituencies) on particular
>>>>>issues and have been aggregated in to a
>>>>>larger picture of overall community
>>>>>dissatisfaction? Concerns by distinct groups
>>>>>on particular topics can certainly be dealt
>>>>>with by the increased robustness proposed to
>>>>>ICANN’s bylaws and operations. However, I
>>>>>cannot think of a single example of a
>>>>>failure throughout the history of ICANN that
>>>>>did result or would have resulted in the
>>>>>community as one against an action or decision of the ICANN Board.
>>>>>
>>>>>To be clear – I am 100% supportive of
>>>>>improvements to accountability. I believe
>>>>>that the CCWG has initiated extremely useful
>>>>>work in identifying these mechanisms.
>>>>>
>>>>>I remain unconvinced regarding the argument
>>>>>that accountability=control=enforceability,
>>>>>and the subsequent recommendations of the CCWG that arise from this assumption.
>>>>>
>>>>>
>>>>>Cheers,
>>>>>
>>>>>Chris
>>>>>
>>>>>>On 20 May 2015, at 15:33 , Jordan Carter
>>>>>><<mailto:jordan at internetnz.net.nz>jordan at internetnz.net.nz> wrote:
>>>>>>
>>>>>>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
>>>>>><<mailto:alan.greenberg at mcgill.ca>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
>>>>>> <<mailto:malcolm at linx.net>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:
>>>>>> <tel:%2B44%2020%207645%203523>+44 20 7645 3523
>>>>>> > <<tel:%2B44%2020%207645%203523>tel:%2B44%2020%207645%203523>
>>>>>> > Head of Public Affairs | Read the LINX Public Affairs blog
>>>>>> > London Internet Exchange |
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=PujqDBGqGixKBOrunqLkoUHDthIag7v0xY8FdvW-Sx0&e=>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
>>>>>> >
>>>>>> >
>>>>>> > _______________________________________________
>>>>>> > Accountability-Cross-Community mailing list
>>>>>> >
>>>>>> <mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>>>>> > <mailto:Accountability-Cross-Community at icann.org>
>>>>>> >
>>>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=Q-eiGB-sv0V29BiD3kbPQqSJQp1CknEJTAoowRdEcME&e=>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>> >
>>>>>> >
>>>>>> >
>>>>>> >
>>>>>> > --
>>>>>> > Jordan Carter
>>>>>> >
>>>>>> > Chief Executive
>>>>>> > *InternetNZ*
>>>>>> >
>>>>>> > <tel:04%20495%202118>04 495 2118
>>>>>> (office) | <tel:%2B64%2021%20442%20649>+64 21 442 649 (mob)
>>>>>> >
>>>>>> <mailto:jordan at internetnz.net.nz>jordan at internetnz.net.nz
>>>>>> <mailto:jordan at internetnz.net.nz>
>>>>>> > Skype: jordancarter
>>>>>> >
>>>>>> > /A better world through a better Internet /
>>>>>> >
>>>>>> >
>>>>>> >
>>>>>> > _______________________________________________
>>>>>> > Accountability-Cross-Community mailing list
>>>>>> >
>>>>>> <mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>>>>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>
>>>>>>
>>>>>>---
>>>>>>This email has been checked for viruses by Avast antivirus software.
>>>>>><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avast.com_&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=xbjKy9osurgbceJkE1Q_MWeBGs9WL5ueoUj8U9f2Djc&e=>http://www.avast.com
>>>>>>
>>>>>>_______________________________________________
>>>>>>Accountability-Cross-Community mailing list
>>>>>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>>>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>
>>>>>>_______________________________________________
>>>>>>Accountability-Cross-Community mailing list
>>>>>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>>>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>
>>>>>>
>>>>>>
>>>>>>--
>>>>>>
>>>>>>Jordan Carter
>>>>>>
>>>>>>Chief Executive
>>>>>>InternetNZ
>>>>>>
>>>>>>04 495 2118 (office) | +64 21 442 649 (mob)
>>>>>><mailto:jordan at internetnz.net.nz>jordan at internetnz.net.nz
>>>>>>Skype: jordancarter
>>>>>>
>>>>>>A better world through a better Internet
>>>>>>_______________________________________________
>>>>>>Accountability-Cross-Community mailing list
>>>>>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>>>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>
>>>>>_______________________________________________
>>>>>Accountability-Cross-Community mailing list
>>>>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>
>>>>
>>>>_______________________________________________
>>>>Accountability-Cross-Community mailing list
>>>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>
>>>_______________________________________________
>>>Accountability-Cross-Community mailing list
>>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>_______________________________________________
>>Accountability-Cross-Community mailing list
>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>_______________________________________________
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>Accountability-Cross-Community at icann.org
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