- Accountability-Cross-Community

got some lawyerly answers on membership structure
by Jonathan Zuck Jan. 29, 2015

Jan. 29, 2015

The idea of ICANN membership has come up as a means to anchor the organization in the existing bottom-up, multi-stakeholder community, thereby ensuring its continued legitimacy. The very essence of work stream 1 is that ICANN's Board of Directors would become accountable to the community, in much the same way that the Boards of publicly-traded companies are ultimately accountable to their shareholders. Some good and reasonable questions have been raised on the list about the legality and complexity of a possible membership structure under California not-for-profit corporate law. I tasked my in-house counsel with researching some of these questions and, while recognizing that the CCWG still needs independent expert advice, here's what she's been able to determine: Q: What would this look like? Briefly, the idea is that the head of each of the 11 current ICANN groups (supporting organizations, advisory committees, and stakeholder groups) would become one of the members of ICANN, and would continue to serve as an ICANN member until someone else took over the leadership of that group. Q: Is the proposed membership structure legal? A: Under California non-profit law, a tax-exempt organization may be comprised of members. A tax-exempt organization has broad leeway to create a membership structure that best suits its particular needs. It's clear under California law that individuals may be members. Cal. Corp. Code 5310(a). Moreover, California law does not restrict membership to legally organized groups. Cal. Corp. Code 5313. Thus, it is appropriate for an individual, identified by a group (whether incorporated or unincorporated) to be a member. Alternately, membership can be granted to a group, which can then authorize a person to vote on its behalf. Cal. Corp. Code 5056(c). Q: Will the Government Advisory Committee have a member? Can a government representative be a member of a non-profit organization? A: Yes. As an Advisory Committee, the GAC would have one member on ICANN. California non-profit law permits a government representative (including a representative of a foreign government) to be a member of a non-profit organization. However, if the GAC determines that it prefers to remain only an advisory body and not take on this new membership role, the model is still viable. Q: Will the new membership structure be flexible enough to accommodate future changes to ICANN? A: Yes. Future changes to ICANN membership status would be approved by the members. For example, if a new stakeholder group, supporting organization or advisory committee is created under the bylaws, the current members could offer membership to that entity by a 3/4 vote. Similarly, the current members could remove a current member by a 3/4 vote. The required flexibility would just need to be incorporated into the updated bylaws. Q: How would the members remain accountable? To ensure full accountability, the 11 members would serve on behalf of their respective memberships and could be recalled or replaced by their group at any time. Q: How to prevent membership from being GNSO-heavy? Any concerns about the 11 members being too GNSO-heavy could be addressed via a weighted voting structure or similar mechanism. Q: How will the new membership structure prevent organizational capture? Will each member be treated the same? A: The new membership structure prevents organizational capture by giving each stakeholder group only one representative member to ICANN and requiring a 3/4 vote for significant decisions, thereby ensuring significant consensus. Each member receives one vote of equal weight to the other members. For instance, governments are represented by the GAC Chair, and have only one collective voice out of 11 in the accountability process. Q: Will the membership process preclude those unable or unwilling to pay membership dues? A: Membership would be free to all eligible members. Participation in the existing group of supporting organizations and advisory committees will not be altered, and will remain free of charge. I hope this helps to inform our discussions while we wait for the independent legal experts to give us their views. Jonathan Zuck President 202-331-2130 X 101 | jzuck(a)actonline.org<mailto:jzuck@actonline.org> | Skype: jvzuck ACT | The App Association [https://dl.dropboxusercontent.com/u/6442666/twitter.png]<https://twitter.com/actonline> [https://dl.dropboxusercontent.com/u/6442666/fb.png]<https://www.facebook.com/actonline.org> [https://dl.dropboxusercontent.com/u/6442666/actonline.png]<http://actonline.org/>

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Re: [CCWG-ACCT] due diligence of ccTLD delegation changes
by Bruce Tonkin Jan. 29, 2015

Jan. 29, 2015

Hello Eberhard, >> ticking off check lists without looking beyond "traffic lights", Actually usually we have a Board member act as shepherd for such a motion and do a little further due diligence to ensure all processes were followed. In the past we had a separate Board committee do that. This is particularly the case when Board members are contacted by parties within the country with any concerns. Certainly any re-delegation gets quite a bit of scrutiny. A key improvement in the process – would be to require publication of proposed changes and public comment processes to capture any concerns from the affected community. >> What we need to do is to get the FoI Principles established. >> And, come to think of it, as far as the ccNSO is concerned (as per your suggestion) we can just run them as a PDP because all the heavy lifting has been done, and the ccNSO unanimously approves of them. Maybe we can even fast track them. Good idea. This is exactly what the PDP process is intended for. >> We also need the IANA function Manager to publish ALL criteria it requires from a proposed (incoming) Manager. it would even make applications easier to make, and to evaluate. Good idea also. I was hoping actually that some of these recommendations would have come from the Cross Community Working Group (CWG) to Develop an IANA Stewardship Transition Proposal on Naming Related Functions. Regards, Bruce Tonkin

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Re: [CCWG-ACCT] participation of Governments, ccTLD managers, gTLD registrars etc in the accountability structures
by Bruce Tonkin Jan. 29, 2015

Jan. 29, 2015

Hello Keith, >> I'm curious why you think a ccTLD manager's choice to not join the ccNSO equates to an unworkable accountability model for those who have opted to join and participate and bind themselves to ccNSO policy. Over the years – a key performance measure at different times for ICANN staff has been to improve outreach to Governments, ccTLD managers, and gTLD registrars to encourage these entities to participate as members in the various structures at ICANN – e.g GAC, ccNSO, Registrars Stakeholder Group. Ideally ICANN manages to achieve a better than 75% level of participation in each of these areas. To get participation at this level – implies that the ICANN multi-stakeholder model provides value in various ways to the members of these constituent groups. If we get low levels of participation – then I think ICANN becomes far less accountable to its stakeholders. I guess it is a bit like getting voter turn-out for elections in countries where voting is voluntary. A Government "elected" by a minority of the population is general less accepted by the whole population of the country. Note that in Australia it is compulsory to vote in Government elections, and you are fined if you don’t ☺ Regards, Bruce Tonkin

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Call for volunteers: new work groups
by Adam Peake Jan. 28, 2015

Jan. 28, 2015

Hi everyone, Seeking volunteers to contribute to the two new work groups: (1) Community Empowerment, led by Jordan Carter (2) Review and Redress, led by Becky Burr Mailing lists have been set-up for both. Anyone who would like to join either group please write to Brenda brenda.brewer(a)icann.org offlist indicating which group you would like to join. Thank you, Adam Adam Peake ICANN

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Speech by Larry Strickling on transition of IANA stewardship
by Chris Disspain Jan. 28, 2015

Jan. 28, 2015

All, FYI, Secretary Strickling's speech today at State of the Net Conference. http://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-st… Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo(a)auda.org.au | W: www.auda.org.au auDA – Australia’s Domain Name Administrator Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.

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Re: [CCWG-ACCT] got some lawyerly answers on membership structure
by Alan Greenberg Jan. 28, 2015

Jan. 28, 2015

My presumption is that the AC/SO/or whatever would be the "member" and that the Chair (or delegate) would be the representative of the member. I understand that members may be individuals, incorporated bodies or unincorporated bodies, but I question whether a Member can be an organization that owes its existence to the body in which is it a member. That seems to be circular definition. Alan At 27/01/2015 01:05 PM, Jonathan Zuck wrote: >The idea of ICANN membership has come up as a means to anchor the >organization in the existing bottom-up, multi-stakeholder community, >thereby ensuring its continued legitimacy. The very essence of work >stream 1 is that ICANN's Board of Directors would become accountable >to the community, in much the same way that the Boards of >publicly-traded companies are ultimately accountable to their shareholders. >Some good and reasonable questions have been raised on the list >about the legality and complexity of a possible membership structure >under California not-for-profit corporate law. I tasked my in-house >counsel with researching some of these questions and, while >recognizing that the CCWG still needs independent expert advice, >here's what she's been able to determine: > >Q: What would this look like? >Briefly, the idea is that the head of each of the 11 current ICANN >groups (supporting organizations, advisory committees, and >stakeholder groups) would become one of the members of ICANN, and >would continue to serve as an ICANN member until someone else took >over the leadership of that group. > >Q: Is the proposed membership structure legal? >A: Under California non-profit law, a tax-exempt organization may be >comprised of members. A tax-exempt organization has broad leeway to >create a membership structure that best suits its particular needs. >It's clear under California law that individuals may be members. >Cal. Corp. Code 5310(a). Moreover, California law does not restrict >membership to legally organized groups. Cal. Corp. Code 5313. Thus, >it is appropriate for an individual, identified by a group (whether >incorporated or unincorporated) to be a member. Alternately, >membership can be granted to a group, which can then authorize a >person to vote on its behalf. Cal. Corp. Code 5056(c). > >Q: Will the Government Advisory Committee have a member? Can a >government representative be a member of a non-profit organization? >A: Yes. As an Advisory Committee, the GAC would have one member on >ICANN. California non-profit law permits a government >representative (including a representative of a foreign government) >to be a member of a non-profit organization. However, if the GAC >determines that it prefers to remain only an advisory body and not >take on this new membership role, the model is still viable. > >Q: Will the new membership structure be flexible enough to >accommodate future changes to ICANN? >A: Yes. Future changes to ICANN membership status would be approved >by the members. For example, if a new stakeholder group, supporting >organization or advisory committee is created under the bylaws, the >current members could offer membership to that entity by a 3/4 >vote. Similarly, the current members could remove a current member >by a 3/4 vote. The required flexibility would just need to be >incorporated into the updated bylaws. > >Q: How would the members remain accountable? >To ensure full accountability, the 11 members would serve on behalf >of their respective memberships and could be recalled or replaced by >their group at any time. > >Q: How to prevent membership from being GNSO-heavy? >Any concerns about the 11 members being too GNSO-heavy could be >addressed via a weighted voting structure or similar mechanism. > >Q: How will the new membership structure prevent organizational >capture? Will each member be treated the same? >A: The new membership structure prevents organizational capture by >giving each stakeholder group only one representative member to >ICANN and requiring a 3/4 vote for significant decisions, thereby >ensuring significant consensus. Each member receives one vote of >equal weight to the other members. For instance, governments are >represented by the GAC Chair, and have only one collective voice out >of 11 in the accountability process. > >Q: Will the membership process preclude those unable or unwilling to >pay membership dues? >A: Membership would be free to all eligible members. Participation >in the existing group of supporting organizations and advisory >committees will not be altered, and will remain free of charge. > >I hope this helps to inform our discussions while we wait for the >independent legal experts to give us their views. > > >Jonathan Zuck >President >202-331-2130 X 101 | <mailto:jzuck@actonline.org>jzuck(a)actonline.org >| Skype: jvzuck > >ACT | The App Association > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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Re: [CCWG-ACCT] "Delegates": A Possible Alternative to Members
by Alan Greenberg Jan. 28, 2015

Jan. 28, 2015

I am a firm believer in making as few changes as necessary. Although membership may well be the best way to go, getting the same effect from a less onerous change may be preferable. Alan At 27/01/2015 02:33 PM, Greg Shatan wrote: >Jonathan, > >I agree that delegates would not (or need not) >be functionally different from members. It >would be structurally different, however, which >may resolve certain concerns that have arisen >regarding "joining" ICANN, turning ICANN into a membership organization, etc. > >Greg > >On Tue, Jan 27, 2015 at 1:10 PM, Jonathan Zuck ><<mailto:JZuck@actonline.org>JZuck(a)actonline.org> wrote: > >Definitely something to look into. Iâm not >sure that delegates would functionally be too >much different from members, though, and would >require the same tough questions be answered as >to powers. Meanwhile, I had my in-house counsel >look into the questions that have been raised >about membership and the preliminary results are >encouraging. Started a new thread with it. > >Jonathan > > > > > >From: ><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Carlos Raul Gutierrez >Sent: Tuesday, January 27, 2015 12:41 PM >To: Greg Shatan >Cc: ><mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org >Subject: Re: [CCWG-ACCT] "Delegates": A Possible Alternative to Members > > > >I think this is an interesting avenue, as some >Board members, the ones who have NOT been >nominated by the NomCom, have been "delegated" >by its respective constituencies. > > > >Furthermore as Roelof Meijer suggested earlier >on, the Board should be separated between the >NomCom delegates as ExecBoard, while the >"Delegates" could constitute a Supervisory Board >in the European style. Under this layered >structure, we could develop the so much needed >Internal system of Review and Redress of the >(exec)Board decisions, well under control of the constituencies....... > > >Carlos RaÃºl GutiÃ©rrez >ISOC Costa Rica Chapter >skype carlos.raulg ><tel:%2B506%208837%207176>+506 8837 7176 (New Phone number!!!!) >________ >Apartado 1571-1000 >COSTA RICA > > > >2015-01-27 10:03 GMT-06:00 Greg Shatan ><<mailto:gregshatanipc@gmail.com>gregshatanipc(a)gmail.com>: > >California non-profit law states that a >non-profit corporation may have delegates, who >would have some or all of the powers of >members. It is my understanding that these >delegates would not be "statutory" members of >the organization (and that the organization >would not be a "membership" non-profit). > > > >It is possible that using delegates could solve >some of the issues raised about members and the >concept of "membership." I have not read beyond >the statute itself, so consider this only a >rough starting point (and certainly not "legal advice"). > > > >Here is the statutory language, from Cal. Corp. Code Â§5152: > > > >5152. A corporation may provide in its bylaws for delegates having > >some or all of the authority of members. Where delegates are provided > >for, the bylaws shall set forth delegates' terms of office, any > >reasonable method for delegates' selection and removal, and any > >reasonable method for calling, noticing and holding meetings of > >delegates and may set forth the manner in which delegates may act by > >written ballot similar to Section 5513 for written ballot of members. > >Delegates may only act personally at a meeting or by written ballot > >and may not act by proxy. Delegates may be given a name other than >"delegates." > > > >Greg Shatan > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community

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"Delegates": A Possible Alternative to Members
by Greg Shatan Jan. 27, 2015

Jan. 27, 2015

California non-profit law states that a non-profit corporation may have delegates, who would have some or all of the powers of members. It is my understanding that these delegates would not be "statutory" members of the organization (and that the organization would not be a "membership" non-profit). It is possible that using delegates could solve some of the issues raised about members and the concept of "membership." I have not read beyond the statute itself, so consider this only a rough starting point (and certainly not "legal advice"). Here is the statutory language, from Cal. Corp. Code §5152: 5152. A corporation may provide in its bylaws for delegates having some or all of the authority of members. Where delegates are provided for, the bylaws shall set forth delegates' terms of office, any reasonable method for delegates' selection and removal, and any reasonable method for calling, noticing and holding meetings of delegates and may set forth the manner in which delegates may act by written ballot similar to Section 5513 for written ballot of members. Delegates may only act personally at a meeting or by written ballot and may not act by proxy. Delegates may be given a name other than "delegates." Greg Shatan

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Late Apology
by Dr Eberhard W Lisse Jan. 27, 2015

Jan. 27, 2015

Sorry about missing the call, major power failure in my suburb, and I am not going to be able to do this through the 4G... el Sent from Dr Lisse's iPad mini

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Contingencies and Board Risk Committee
by Mathieu Weill Jan. 27, 2015

Jan. 27, 2015

Dear Colleagues, In anticipation of our call, I want to share two items of relevance for the contingency discussion. 1) Questions for "repurposed" WA4 In Frankfurt we agreed to further investigate on the contingency list by providing answers to several questions on each contingency. There was discussion about the phrasing of the questions. Below is a proposal attempting to merge the Charter deliverable questions with our discussion : * How relevant is the threat to the transition of the IANA stewardship ? ie how does the transition affect the likelihood of the threat, or the severeness of the consequences ? * Are there existing remedies in place ? Are these remedies robust ? * Could addressing the contingency be achieved through amending existing accountability mechanisms or is creating new ones necessary ? 2) Input from the Board Risk Committee You may remember we had requested communication from the Board Risk Committee regarding the list of contingencies that they consider in the course of their mission, which includes overseeing Icann's risk management framework. Thanks to Bruce Tonkin, our Board Liaison, as well as the members of this Committee, we have now received communication of this list. I have attached the document. Our group should now be able to check whether the list contains contingencies we should add. Looking forward to discussing this on our upcoming call. Best regards, Mathieu Weill -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill(a)afnic.fr Twitter : @mathieuweill *****************************

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