[CCWG-ACCT] Question regarding UAs

Thu May 21 14:39:31 UTC 2015

+1 Mathieu and exactly right.  It is convenient, I think, to conflate the
new membership structure issue with the “jurisdiction” issue of where
litigation might occur.  But the reality (as I wrote about in this blog:
http://www.lawfareblog.com/2015/04/on-the-issue-of-jurisdiction-over-icann/)
is that ICANN will be subject to suit in many places in the world, including
California, no matter what it does in terms of membership structures or
place of incorporation.  I dare say, without having researched the matter in
detail, that by virtue of its hub offices in Turkey and Singapore, the
scenario Chis posits could also quite colorably result in law suit in those
countries – where the courts would certainly assert personal jurisdiction
over the corporation.  I do not know how choice of law rules operate in
those jurisdictions (i.e. which substantive law they would choose to apply),
nor do I know whether the courts in those jurisdictions would defer to the
arbitral ruling or revisit it de novo.  One of the advantages of California
law is that arbitration decisions are given great deference (a principle
also embodied in the Federal Arbitration Act).

In short, there is no way to avoid the possibility that ICANN, wherever it
is located, and whatever its structure, will be haled into court in any
jurisdiction around the globe.  Frankly, if Chris were the aggrieved party –
say as future chair of ICANN :) -- I imagine he might bring the suit for
declaratory judgment in Australia 

Paul

Paul Rosenzweig

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paul.rosenzweig at redbranchconsulting.com 

O: +1 (202) 547-0660

M: +1 (202) 329-9650

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From: Mathieu Weill [mailto:mathieu.weill at afnic.fr] 
Sent: Thursday, May 21, 2015 3:14 AM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Question regarding UAs

Dear Chris, All,

Many thanks for explaining the concern through this step by step scenario.
This is taking us closer to a stress test approach, which is not only
valuable but also mandatory for our group, as per our Charter. I understand
your concern is (quoting your email) "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." 

There is however something I do not understand in your "steps": 

Le 21/05/2015 03:45, Chris Disspain a écrit :

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.

I have four questions : 
- In your scenario the community would "mission creep". I am not clear how
in our report the community would direct the Board to do X. Community powers
as we have defined them are restricted to reject / review on budgets or
bylaws. Could you clarify this part of the scenario ? 
- If the Board refuses to act on the arbitrator findings, why would the
community turn to California Court instead of recall the Board ? 
- Given that there was a a binding arbitration decision directing Icann to
do X, my understanding was that the court of California would have very
limited grounds to turn the decision around. Is that not already addressing
the concern of allowing a court of california to decide on what is or is not
within Icann's mission ? 
- And finally, is it not the case today that a Court of California could
make such a binding decision ? 

Best
Mathieu

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

E:  <mailto:ceo at auda.org.au> ceo at auda.org.au | W:  <http://www.auda.org.au/>
www.auda.org.au 

auDA – Australia’s Domain Name Administrator

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On 21 May 2015, at 07:51 , Burr, Becky <Becky.Burr at neustar.biz
<mailto: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 /
<http://www.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_syste
m_files_files_acct-2Dtrans-2Dframeworks-2Dprinciples-2D10jan08-2Den.pdf&d=Aw
MGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&
m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=-nHIJ38MbHZo2QiXUiLPqBi6Yeae
sFEbRqTO3RL3Jew&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: <mailto:malcolm at linx.net> 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>
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AFNIC - directeur général
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Twitter : @mathieuweill
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