[Gnso-newgtld-wg] ICANN's Ability to Act (Without Using Predictability Model)

Rubens Kuhl rubensk at nic.br
Sat Oct 31 01:39:36 UTC 2020

> On 30 Oct 2020, at 20:37, Aikman-Scalese, Anne <AAikman at lrrc.com> wrote:
> Jeff,
> I don’t actually see any way for us as a WG to constrain the Board when it determines it needs to act based on the exercise of fiduciary duty by each individual member.  We did not choose a membership organization in the IANA transition.  We chose a non-profit corporation.  So the Board’s accountability is to the corporation, not to the community.
> I think we would just have to say that “The foregoing notwithstanding, it is understood that the ICANN Board may need to exercise its fiduciary duty to act in emergency situations to address security and stability concerns, as well as to preserve the proper functioning of the Internet’s systems.  In such cases, the Board will notify all Empowered Community representatives in writing within 24 hours of taking such action.”

A security issue in the subsequent procedures program does not equate to a security and stability issue on the Internet identifiers system. For instance, when TAS had a breach, only new gTLD applicants and their information were affected.

As for the fiduciary duty to the corporation, its bylaws also foresee it acting in the public interest. So it's somewhat different from a corporation where the Board only has to do what's better for the corporation; so while existential threats to the corporation will require board members to preserve the corporation, even an action by a board member that creates more requirements to the corporation but fulfil its bylaw objectives are aligned with their fiduciary duties.

I don't see this workgroup or the GNSO creating new missions for the Empowered Community; I see only EC itself being able to do so.


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