[CCWG-ACCT] Question regarding UAs
Alan Greenberg
alan.greenberg at mcgill.ca
Mon May 25 16:13:11 UTC 2015
Paul, you miss my point. I was asking whether it
was possible to waive the right to go to court,
with the ultimate community recourse of ditching
the Board (or part of it) - which COULD be enforced by the courts if needed.
Alan
At 25/05/2015 12:08 PM, Paul Rosenzweig wrote:
>Alan
>
>You are not wrong
but it is incomplete. Even
>if one agrees to use binding arbitration, there
>will always be a background right of access to
>the courts. For one thing, one party to the
>arbitration might defy the arbitrators award,
>requiring someone to go to court to enforce the
>judgment (since arbitrators do not come with
>police powers). For another, one party may
>dispute the terms of the contract and argue that
>the issue which the other party seeks to
>arbitrate is outside the bounds of the
>arbitration agreement in the first instance, and
>therefore the issue of the scope of the contract
>itself can become subject to litigation.
>
>So long as there are parties, there will be disputes and there will be courts.
>
>What you want, preferentially, is two
>things: 1) As clear a statement as possible
>regarding the scope and substance of binding
>arbitration; and 2) A judicial system where the
>courts systematically defer to arbitration and
>refrain from inserting themselves into the
>process to the maximum extent possible. So
>judicial systems may not be so withdrawn.
>
>I can’t speak too much to the California system,
>though I do have a sense that they favor
>arbitration by statute. I can tell you that in
>the US Federal system, the preference for
>allowing arbitration to go forward is a matter
>of law. The Federal Arbitration Act
>(<http://en.wikipedia.org/wiki/Federal_Arbitration_Act>http://en.wikipedia.org/wiki/Federal_Arbitration_Act)
>has been on the books since 1925. Supreme Court
>cases interpreting the statute have routinely
>given it broad effect and ordered lower courts
>to refrain from disturbing the contractual
>agreements between the parties as to
>arbitration. I have a sense, albeit limited,
>that in continental judicial systems, the courts
>are less deferential. But in truth it seems to
>me that it would be relatively hard to find a
>legal jurisdiction where substantially greater
>deference would be paid to the choice of arbitration than in the US.
>
>[As an aside, of possible interest to some, this
>preference for arbitration is often seen by
>consumer advocates as a bad thing – many of the
>mandatory arbitration clauses that are the
>subject of litigation are ones that they think
>are unjustly “imposed” on consumers e.g. by big
>manufacturers. One of the underlying themes of
>this discussion is that private contractual
>arrangements are generally superior to judicial
>resolution. While I firmly agree with that, it
>is worth noting that it is not always the case
]
>
>Cheers
>Paul
>
>Paul Rosenzweig
><mailto:paul.rosenzweigesq at redbranchconsulting.com>paul.rosenzweig at redbranchconsulting.com
>
>O: +1 (202) 547-0660
>M: +1 (202) 329-9650
>VOIP: +1 (202) 738-1739
>Skype: paul.rosenzweig1066
><http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>Link
>to my PGP Key
>
>
>From: Alan Greenberg [mailto:alan.greenberg at mcgill.ca]
>Sent: Monday, May 25, 2015 12:40 AM
>To: Chris Disspain; Becky Burr
>Cc: accountability-cross-community at icann.org
>Subject: Re: [CCWG-ACCT] Question regarding UAs
>
>I am entering a debate between two lawyers with
>some trepidation, but her goes.
>
>I know that in contracts, one can agree to use
>binding arbitration instead of the courts. Can
>we do so here? With one exception. Members can
>go to court to enforce a recall/dismissal of
>Board members. It strikes me that if we can do
>that, we address all of the concerns.
>
>Arbitration does not, I think, set a precedent
>that must be honored in the future, so Chris's
>worry about the courts defining the ICANN mission is no longer an issue.
>
>The Board could still defy the community. But
>they could either discuss the situation, as
>Chris is convinced would happen, or ultimately
>if they refuse, or the outcome is not to the
>community's satisfaction, we have the right to
>remove those members of the Board who are
>standing in the way (or the entire Board). This
>could not be defied, because we COULD go to court over that.
>
>Would this work?
>
>Alan
>
>At 24/05/2015 09:39 PM, Chris Disspain wrote:
>
>Hi Becky,
>
>
>So, that means that that in my scenario the
>community could go straight to court at any
>point that the Board ‘refuses’ to act. I’m not
>saying that is necessarily ‘bad’ but it’s
>important to understand. Not sure I understand
>this. If the community vetoed a proposed
>budget, but the Board refused to honor that
>veto, the community could seek to have its legal
>rights enforced – either in court or through
>arbitration. But under a member/designator
>model, the Board would be violating its legal
>obligation to honor the community veto. Why would it do that?
>
>
>Surely irrespective of the obligation set out in
>the bylaw being legally enforceable, the Board
>would be obliged to refuse to honour the veto if
>it was advised that to do so would mean that
>ICANN was acting outside of its mission.
>
>In the membership model the community could then
>go to court in California and ask the court to
>require the Board to honour the veto and the
>court would do so PROVIDED THAT it found that to
>do so was not outside the the mission. That
>would become a binding, precedent setting
>interpretation of ICANN’s mission by a US court.
>
>In the non-membership model the community and
>the board would sit down together and work out a way through.
>
>
>Not sure I understand this. I don’t think the
>courts in California currently have jurisdiction
>so I’m not sure that they can, today, involve
>themselves as you suggest. Confused here. If
>ICANN violated its fiduciary duties, breached a
>contractual obligation, or engaged in tortious
>conduct, a California court – along with lots of
>other courts – would have jurisdiction. With
>respect to fiduciary duties and contract
>breaches, California law would likely apply
>wherever the case was brought, though applicable
>law would vary in the case of tort claims. In
>the event the IRP became binding, a claimant
>could go to Court in California to force ICANN
>to honor the panel’s decision. Again, though,
>if the IRP decision was binding, ICANN would
>have a legal obligation to honor it, so why would it refuse to do so?
>
>
>Yes, where there is a contract (registries,
>registrars) the California court has
>jurisdiction. But we are not discussing that. We
>are discussing changing the current structure so
>that the SOs and ACs have the right to make the
>Board do the stuff they would be obliged to do
>pursuant to the new set of bylaws.
>
>You say, in the event that the IRP became
>binding, because the Board would have a legal
>obligation to honour the decision, why would
>they not? I say, if it is made binding under the
>fundamental bylaws, even if the Board could not
>be legally forced to honour the decision, why
>would they not? I accept they CAN refuse to
>honour it. Why WOULD they refuse to honour it?
>
>
>I am confused.
>
>
>Sorry for not being clear.
>
>
>If ICANN refuses to honor a community veto of a
>budget or bylaw change, one or more of the
>UAs/members could use the IRP or go to
>court. Why is that a problem, if the budget has
>been vetoed with the support of the broader
>community as required to veto in the first place?
>
>
>So you’re saying legal action CAN be launched at
>any stage by a single member irrespective of what the other members think?
>
>
>More to the point, why would the Board refuse to
>honor a veto imposed consistent with the requirements?
>
>
>As I’ve said above, if the board is advised that
>to honour the veto is a breach of their
>fiduciary duty then they would likely have to refuse.
>
>
>
> We are making assumptions about lawlessness
> that seem odd to me. And if the Board is
> willing to ignore its legal obligation to
> accept a properly imposed community veto, why
> shouldn’t the members be able to enforce their
> legal authority? If you are worried that one
> UA would claim that the community had vetoed a
> budget when that wasn’t what happened, any
> lawsuit could be pretty readily disposed of by affidavits from other UAs.
>
>
>Not what I meant.
>
>As I understand it, the membership model would
>mean that any member could go to court in
>respect to the Board’s interpretation of any
>bylaw, not just the fundamental ones. So, if one
>SO or AC member (or their shadow entity)
>believed that a budget line item was outside of
>ICANN’s mission then as a member that SO or AC
>could launch court proceedings in California for
>a ruling as to whether that was or was not the case.
>
>Am I correct in my understanding?
>
>
>Cheers,
>
>
>Chris
>
>
>On 23 May 2015, at 03:05 , Burr, Becky
><<mailto:Becky.Burr at neustar.biz>Becky.Burr at neustar.biz > wrote:
>
>I have added some questions and comments in blue italics below
>
>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: Chris Disspain <<mailto:ceo at auda.org.au>ceo at auda.org.au>
>Date: Friday, May 22, 2015 at 5:29 AM
>To:
>"<mailto:Mathieu.Weill at afnic.fr>Mathieu.Weill at afnic.fr
>" <<mailto:Mathieu.Weill at afnic.fr>Mathieu.Weill at afnic.fr >
>Cc: Accountability Community
><<mailto:accountability-cross-community at icann.org>
>accountability-cross-community at icann.org>
>Subject: Re: [CCWG-ACCT] Question regarding UAs
>
>Hi Mathieu,
>
>See below. And thanks!
>
>
>Cheers,
>
>Chris
>
>
>On 22 May 2015, at 20:16 , Mathieu Weill
><<mailto:mathieu.weill at afnic.fr>mathieu.weill at afnic.fr > wrote:
>
>Chris,
>
>Thank you so much because I think this is a very
>useful discussion. I would try and reformulate
>to check if we are communicating before turning
>to lawyers or any further work :
>
>1) The scenario to assess is the case where the
>community rejects a budget because the community
>would like Icann to expand its actions into
>something that the Community feels is within the
>Mission while the Board feels it is outside of
>Icann's Mission, as described in the Bylaws. The
>Board would then be "stuck" between the
>community and its perceived obligation to not mission creep.
>
>Basically, our discussion is starting to look
>like a stress test of this particular scenario:
>what would the current accountability mechanism
>enable ? what enhancements or changes would be
>brought by the proposed accountability framework ?
>
>
>Yes, I agree that this is, in effect a stress
>test. My view is that such a scenario under our
>current structures would be sorted out between us all.
>
>
>
>2) It is clear to me that our initial report
>does NOT say that legal action could only be
>undertaken if all other remedies have been
>exhausted (I don't even think it would be
>legally feasible). Clearly this could not be
>mandatory in all circumstances, but I think you
>could take steps to encourage arbitration over
>resort to court if it really made sense to do that.
>
>
>So, that means that that in my scenario the
>community could go straight to court at any
>point that the Board ‘refuses’ to act. I’m not
>saying that is necessarily ‘bad’ but it’s
>important to understand. Not sure I understand
>this. If the community vetoed a proposed
>budget, but the Board refused to honor that
>veto, the community could seek to have its legal
>rights enforced – either in court or through
>arbitration. But under a member/designator
>model, the Board would be violating its legal
>obligation to honor the community veto. Why would it do that?
>
>
>
>3) You are asking clarification of several questions :
> * what the limited grounds are for a
> California Court to overturn an arbitration
> (IRP) decision ? (my own recollection of the
> IRP memos we received from counsel was : arbitration scope or procedure)
>
>
>Not sure I understand this. I don’t think the
>courts in California currently have jurisdiction
>so I’m not sure that they can, today, involve
>themselves as you suggest. Confused here. If
>ICANN violated its fiduciary duties, breached a
>contractual obligation, or engaged in tortious
>conduct, a California court – along with lots of
>other courts – would have jurisdiction. With
>respect to fiduciary duties and contract
>breaches, California law would likely apply
>wherever the case was brought, though applicable
>law would vary in the case of tort claims. In
>the event the IRP became binding, a claimant
>could go to Court in California to force ICANN
>to honor the panel’s decision. Again, though,
>if the IRP decision was binding, ICANN would
>have a legal obligation to honor it, so why would it refuse to do so?
>
>
> * whether the proposed membership model
> would enable each UA to initiate legal action
> against Icann irrespective of what other parts
> of the community think ? (my understanding is :
> yes. But I guess that today if NARALO felt a
> decision was causing them prejudice they could
> sue Icann as well, so maybe we should reframe
> the question into : would there be a
> significant increase of the risk for Icann to be sued ?)
>
>
>I don’t know what the status of NARALO is (are
>they a legal entity) and I don’t know if they
>could in fact bring proceedings against ICANN.
>And if they could the question would be ‘about
>what could they sue?’. Obviously, a gTLD
>registry has a contract with ICANN and could
>therefore sue ICANN (and vice versa) in respect
>to the contract. But I don’t think they could
>sue in respect to ICANN’s bylaws generally. And
>neither I suspect could NARALO.
>
>So, yes, the question;
>
>
>would there be a significant increase of the risk for Icann to be sued ?
>
>
>is a relevant one provided you and I are right
>and any member will be able to sue ICANN about
>any interpretation ICANN makes about its bylaws.
>Thinking about it, we should probably get
>clarity on all the areas that a member could sue on.
>
>I am confused. If ICANN refuses to honor a
>community veto of a budget or bylaw change, one
>or more of the UAs/members could use the IRP or
>go to court. Why is that a problem, if the
>budget has been vetoed with the support of the
>broader community as required to veto in the
>first place? More to the point, why would the
>Board refuse to honor a veto imposed consistent
>with the requirements? We are making
>assumptions about lawlessness that seem odd to
>me. And if the Board is willing to ignore its
>legal obligation to accept a properly imposed
>community veto, why shouldn’t the members be
>able to enforce their legal authority? If you
>are worried that one UA would claim that the
>community had vetoed a budget when that wasn’t
>what happened, any lawsuit could be pretty
>readily disposed of by affidavits from other UAs.
>
>
>Can you please confirm that we are on the same page here ?
>
>
>Assuming you’re fine with the above the, yes, we are on the same page.
>
>
>
>best
>Mathieu
>
>Le 22/05/2015 08:47, Chris Disspain a écrit :
>
>Mathieu,
>
>You've asked a series of questions which I have
>thought about very carefully. I acknowledge that
>the scenario I suggest is unlikely but your
>questions have led me to a further question
>which I pose below my responses to yours.
>
>- 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 ?
>
>I do believe that it is feasible that the Board
>could refuse the follow a community veto on a
>budget item because the board believes to do so
>would be a breach of the Board’s fiduciary
>duties to act in the interests of ICANN in accordance with ICANN’s mission.
>
>- If the Board refuses to act on the arbitrator
>findings, why would the community turn to
>California Court instead of recall the Board ?
>
>They may well turn to the recall mechanism but
>would they HAVE TO. Is it anticipated that the
>resort to legal action would only be possible
>once ALL OTHER REMEDIES have been exhausted? In
>other words, in effect the only thing a court
>would ever be asked to do is to enforce the
>communities spill of the Board? Or is it perhaps
>anticipated that the community to resort to the
>court at any stage along the escalation process?
>
>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 ?
>
> The key point is that irrespective of whether
> there are “limited grounds” for the court to
> reverse a decision or take a decision contrary
> to the views of the community,it could happen.
> The ultimate authority becomes the Californian legal system.
>
>And finally, is it not the case today that a
>Court of California could make such a binding decision ?
>
>I don’t believe so but stand to be corrected.
>
>My question is an extension of the point I’ve
>made above about when the community can go to court.
>
>Am I correct in my understanding that once we
>become a member based organisation, it would be
>open to any of the member UAs to use the court
>system to bring an action against ICANN. In
>other words if the ALAC UA (and I’m just using
>ALAC as an example) was concerned about ICANN’s
>interpretation of one of its non-fundamental
>by-laws then ALAC UA would have legal standing
>to bring an action in California irrespective of what other members think?
>
>May I ask that we get legal clarification on this point please?
>
>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:
><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=k40QcYrN1KaFaeNZfrsd0inmO_CPudQGxgLkAcJpI84&s=tgbw5jdvQjnbs273SFDGMfRb4NKfyuozXIaECldB7Rc&e=>www.auda.org.au
>
>auDA – Australia’s Domain Name Administrator
>
>
>
>
>On 21 May 2015, at 17:14 , Mathieu Weill
><<mailto:mathieu.weill at afnic.fr>mathieu.weill at afnic.fr > wrote:
>
>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:
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>
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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]
>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 |
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> >
> > 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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> > --
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> >
> > Chief Executive
> > *InternetNZ*
> >
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> >
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> < mailto:jordan at internetnz.net.nz>
> > Skype: jordancarter
> >
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> >
> >
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