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

Justine Chew justine.chew at gmail.com
Sat Oct 31 01:52:31 UTC 2020

I agree with Rubens and prefer Jeff's proposed text. It behoves ICANN to
inform impacted users of the affected system(s) so they can determine/take
the necessary action in consequence. I can understand possible uncertainty
over who such "impacted users" might be depending on the "affected
system(s)" but I don't see the need to explicitly mention the Empowered
Community representatives here.


On Sat, 31 Oct 2020 at 09:40, Rubens Kuhl <rubensk at nic.br> wrote:

> 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.
> Rubens
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